Reupholstered President Barack "I win again!" Obama calls a press conference to inform the Senate and the American public that he has nominated two fellow travelers -- Susan Rice and Eric Holder, say -- to the Supreme Court, which would bring the total to eleven justices: five conservatives (one a bit squishy) and six doctrinaire, Progressivist lefties.

Reid calls for an immediate vote in the Senate without troubling to allow questioning of the nominees; he declares the vote to be a "party" vote, meaning none of the Democrat senators is allowed to dissent.

Absent the filibuster, each of the two nominees is confirmed by a vote of 55 to 45.

And wham, ma'am, thank you, Bam, he now has the Supreme Court up his sleeve.

June 26, 2012

Throw the Jew Down the Well!

Parents having their sons circumcised can be brought before a judge for causing bodily injury, even if they did so for religious reasons, a regional court in Germany has ruled....

Following the judgment by the District Court of Cologne, neither the rights of parents nor the constitutional freedom of religion can justify interventions such as circumcision, according to Financial Times Deutschland, which first reported the story....

University of Passau jurist Holm Putzke told the FTD the decision could have far-reaching ramifications.

“As opposed to many politicians, the court was not deterred by fears of being criticized for anti-Semitism or hostility toward religion,” he said. “This decision could not only influence future jurisdiction, it could also lead the relevant religions to change their attitude with respect to the fundamental nature of children’s rights.” [Emphasis added. -- DaH]

One would think that Deutschland, of all countries, would think a second or third time before banning a central tenet of Judaism (and Islam) that long, long predates the existance of the nation of "Germany."

What comes next? Will Germany also ban the kosher laws as an unconscionable intervention into the fundamental nature of children's prandial and gustatory rights? I mean, what kind of parent could deny his offspring the joys of a nice ham-and-cheese sandwich, wrapped in a napkin composed of mixed linen and wool?

Some might see this as a preview of things to come, once we join all of the international agreements that trans-national "citizens of the world" -- such as a certain Big Stick -- have desperately foisted upon the formerly exceptional American people.

January 17, 2012

Tolerating the Intolerable

Injudicious Judiciary
, Islamarama

Hatched by Sachi

On January 10th, a panel of the 10th Circus Court of Appeals refused to lift a district-court injunction against certifying an Oklahoma initiative constitutional amendment that received 70% support from voters. The initiative would ban the use of international law and sharia law in Oklahoma courts, but the 10th Circuit held that it violated the Establishment clause of the United States Constitution:

A proposed constitutional amendment that would ban Oklahoma courts from considering international or Islamic law discriminates against religions, and a Muslim community leader has the right to challenge its constitutionality, a federal appeals court said Tuesday.

The court in Denver upheld U.S. District Judge Vicki Miles-LaGrange's order blocking implementation of the amendment shortly after it was approved by 70 percent of Oklahoma voters in November 2010.

Muneer Awad, the executive director of the Council on American-Islamic Relations [CAIR] in Oklahoma, sued to block the law from taking effect, arguing that the Save Our State Amendment violated his First Amendment rights.

"This is an important reminder that the Constitution is the last line of defense against a rising tide of anti-Muslim bigotry in our society, and we are pleased that the appeals court recognized that fact," Awad said. "We are also hopeful that this decision serves as a reminder to politicians wishing to score political points through fear-mongering and bigotry. "The amendment read, in part: "The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law."

Sidebar by Dafydd: What the circus court actually ruled on was whether the trial judge, Vicki Miles-LaGrange (nominated by Clinton and confirmed before the 1994 Republican landslide), "abused [her] discretion when [she] granted a preliminary injunction to prevent [the Oklahoma State Election Board] from certifying the result." They did not rule on the merits of the underlying case.

Ne'ertheless, the appellate court's ruling itself was based upon a shocking category error: The court mistook use of a binding judicial system for religious worship.

The Oklahome initiative bans a particular and well-recognized system for trying legal cases, which many Islamic countries have adopted. But the judges on the Tenth-Circuit panel -- Terrence L. O'Brien (appointed by George W. Bush), Monroe G. McKay (Jimmy Carter), and Scott Milne Matheson, Jr. (Barack H. Obama) -- inexplicably imagined that preventing binding use of that judicial system, utterly antithetical to the American judicial systems, was the same as preventing Awad from practicing Islam. From the opinion, page 18, and emphasis added:

In this case, the Oklahoma Legislature did not simply adopt a non-binding resolution opposing the consideration or use of Sharia law in state courts, it proposed and the electorate agreed to enshrine such a prohibition in the state’s constitution. Mr. Awad is facing the consequences of a statewide election approving a constitutional measure that would disfavor his religion relative to others.

The panel's confusion is dumbfounding. Mr. Awad is not complaining that he cannot practice Islam; he is complaining that he won't be able to force a bunch of other people to effectively practice his form of Islam, willy nilly, whether they want to or not. For that is what will happen if some jurisdiction of Oklahoma chooses to sanction a sharia court: Even Moslems who don't want to submit to a council of mullahs (a college co-ed who wants to date, for example) will either be forced by law to kow-tow to Islam, or will at the very least come under tremendous, state-sanctioned pressure to "voluntarily" submit to the religion whose very name means "submission."

By banning such sharia courts, Oklahomans want to prevent such discrimination against Moslems who prefer to live under liberty and rule of law rather than theocracy and rule by religious fanatics.

But let's take it out of the hot-button controversy of radical Islamism. Imagine instead a "spiritualism court" that springs up within a number of Eurozone countries, a court that uses a witches' brew of bibliomancy plus the testimony of dead people, via spirit medium, to adjudicate disputes, find living people guilty or innocent of a crime, and to determine negligence in a civil case.

If that form of jurisprudence were banned in Oklahoma, would that truly violate the Establishment clause? To quote Mr. Bumble, "If the law supposes that, the law is a ass -- a idiot."

No, of course not. Believers in spiritualism could still pretend to communicate with ghosts and could still decide life events by blindly opening the Bible and putting their fingers down at a random verse, which they could still interpret to mean they get to do whatever they wanted to do in the first place. What such a law would prevent, however, is dragging other people, non-believers in spiritualism, into that bizarre alternate world against their will. And that is all that the Oklahoma initiate does.

Mr. Awad has no constitutional right to have his cases heard in a sharia court, anymore than he has a constitutional right to have them heard in a spiritualism court; nor has he the right to live under a different set of laws than everybody else. It's an absurdity to suggest that requiring every citizen of Oklahoma to live under the same jurisprudence somehow violates people's freedom of religion -- unless you're also prepared to argue that modern-day Aztecs should be allowed to murder people because human sacrifice is part of their religion, and to prevent them from doing so violates the Establishment clause of the U.S. Constitution.

This panel is both a ass and a idiot; the injunction should have been lifted because Muneer Awad has no standing; he has no standing because he is not "injured" by this initiative; and he is not injured because he has no right to demand he be tried by a court whose practices are utterly foreign to American jurisprudence, for cripes' sake.

We now return you to your regularly scheduled blogpost by Sachi.

I don’t see how it can be considered unequal treatment, or even "anti-Muslim bigotry," for all Oklahomans to be governed by the same state and federal constitutions, the same law, and the same court procedures. This amendment does not prohibit practicing the "religion of peace" [actually, the religion of submission -- DaH]. So why would this violate anyone's rights, Moslem or otherwise?

True, the amendment mentions Sharia law in couple of places. I don't necessarily buy the supporters explanation that Sharia was used merely as an example; I am sure whoever proposed the amendment had the real threat of Sharia law in mind. I certainly hope he did!

But as long as the operative parts of the law do not single out Sharia -- for example, banning Sharia law in the Oklahoma courts while allowing, say, Catholic canon law or Jewish Talmudic law; and so long as the law bans all international, religious, tribal, or traditional laws that are not a part of American and Oklahoman jurisprudence (as it looks like it does), I don't see why that should be considered discriminatory or unequal protection.

Maybe it takes a lawyer to believe such a thing.

Awad argued that the ban on Islamic law would likely affect every aspect of his life as well as the execution of his will after his death. The appeals court pointed out that Awad made a "strong showing" of potential harm.

What aspect of Mr. Awad's life does this amendment affect so negatively? I am sure this amendment does not prohibit him from washing his feet before prayer, or pressing his forehead to a prayer rug five times a day. It does not prohibit his female family members from wearing burkas, unless the girls want to join JROTC -- wait, scratch that. So what upsets Awad so?

But perhaps he has other concerns. Is he discriminated against when the law prevents a future Oklahoma sharia court from allowing a Moslem father to kill a daughter who kisses a boy at school? Perhaps it's unequal protection under the law when devout radical Islamists are disallowed, despite sharia, from mutilating their toddler-daughter’s genitals. Or maybe Awad is concerned that his fellow CAIR-mates cannot practice their religion -- if their religion tells them to beat the living daylights out of a son for refusing to kill Mom, should Mom ever dare file for divorce against a violent Islamic husband?

Perhaps Mr.Awad demands only the right to stone to death some woman who was just gang raped, or a gay man who was caught in the act, or a female Christian or Jew who happened to wander into the sharia-ruled neighborhood without being veiled and swaddled and in the tow of a male relative. Awad is a reasonable man; he doesn't demand everyone become a Moslem... they can simply pay the dhimmi tax instead.

Yes, those quaint customs and laws enunciated by sharia courts around the world would certainly conflict with American-style jurisprudence. If banning sharia law would actually affect American Moslems’ lives in these ways -- and I hope it would! -- I am extremely glad that our federal Constitution and the Oklahoma state constitution are "discriminatory" against such savagery, bigotry, and anachronistic brutality.

Much of sharia law, Roman law, the Napoleonic Code, Talmudic law, the Code of Hammurabi, the Code Duello, and indeed contemporary, so-called "international law," is completely at odds with Americanism and the vision of the Founders, which we the people accept as our source of law, common law, and court procedures. And if Mr. Awad would like to live under such alternative codes, then perhaps he could move to any of a number of Islamist countries who will cheerfully accommodate his wishes.

But don’t force the rest of us to live under it.

What really upsets me is the hypocrisy of the appeals court. They say that "Awad made a 'strong Showing' of potential harm". But, Sharia law itself makes a strong showing of actually harming Moslems, especially Moslem women. If the state institutes sharia sectors within its territory, or allows mosques or Islamist madrasah to implement them, it will expand like a cancer until all Moslems in the state will be required or heavily pressured to live under sharia law; and that assuredly is discriminating (horrifically) against Moslems.

What happens to a woman who wants to marry a non-Moslem man, stay single and pursue a career, divorce her husband, or who is assaulted by her brother or father? The judges of the circuit court in Denver, as well as trial Judge Vicki Miles-LaGrange (who issued the injunction against certifying the initiative), ruled that Moslem women need not be protected under the same law as other Americans. Again, only a lawyer could consider that to be constitutional.

Mr. Awad’s lawsuit reveals CAIR’s real intention: No matter what they say, their ultimate goal is to implement sharia throughout the United States, throughout the West, and ultimately throughout the entire world. CAIR fights through trickery, through "lawfare," through regulation and friendly legislation, and through our wackiest liberal judges. (This is collectively called Dawa, which is all elements of jihad short of full-scale war.)

The case now returns to federal court in Oklahoma City to determine the constitutionality of the proposed amendment. “My office will continue to defend the state in this matter and proceed with the merits of the case,” Oklahoma Attorney General Scott Pruitt said in a statement.

CAIR pretends Oklahomans' decision was an overreaction caused by unfounded "Islamophobia." However, we Americans, including the 70% of Oklahomans who voted for the amendment, know how incredibly dangerous Moslem extremists are. We all saw the devastation of 9/11 and the subsequent 10-Years War in Iraq and Afganistan.

But Moslems in the US are not and never were rounded up, segregated, forced to live under discriminatory "Jamal Crow" laws, or herded into concentration camps. Rather, Americans believe everyone in a jurisdiction should live under the same laws, not that bellicose pressure groups should get to live under their own private laws. That is the real equality of rights under the law and the real America that 70% of Oklahomans voted for, the America that no activist judge will be allowed to take away from us.

January 12, 2011

There Went the Judge - Here Comes the Judge

Injudicious Judiciary
, Obamunism

Hatched by Dafydd

I mentioned something in passing a couple posts ago. I noted that the most powerful federal official shot during Jared Loughner's rampage was not Rep. Gabrielle Giffords (D-AZ, 95%), but rather District Court Judge John McCarthy Roll, who, unlike Giffords, was slain. Roll was nominated by George H.W. Bush in 1991; he was the senior federal judge in Arizona... and my impression is that he was judicially fairly conservative.

President Barack H. Obama will of course nominate his replacement. The question is whether he will heed Rahm Emanuel's advice and not let this crisis go to waste: Will Obama nominate a judicially ultra-liberal judge in the mold of Ruth Bader Ginsburg or Stephen Breyer to replace Roll?

If he does, Republicans, for sake of simple decency, should not allow him to get away with it; they should filibuster if necessary to prevent the Left from gleefully capitalizing on the very "tragedy" (more correctly, "unspeakable crime") they decry.

That is, if the new Senate rules of Majority Leader Harry "Pinky" Reid (D-Caesar's Palace, 95%) still allow such filibusters, or if (as they promise) they detonate their own "nuclear option." But that brings up another curious flip-flop: I remember when the Democrats were in the minority, and the privilege to filibuster judicial nominees was a cornerstone of our democracy.

October 6, 2010

Civilian Terrorism Trials... What Could Go Wrong?

Minutes before a major terrorism trial was about to begin, a federal judge barred prosecutors in Manhattan on Wednesday from using a key witness.

The government had acknowledged it learned about the witness from the defendant, Ahmed Khalfan Ghailani, while he was being interrogated and held in a secret overseas jail run by the Central Intelligence Agency.

The ruling by Judge Lewis A. Kaplan would seem to be a setback for the Obama administration’s goal of trying former detainees in civilian courts, because it would limit the kinds of evidence that prosecutors could introduce. Mr. Ghailani became the first former detainee to be moved into the civilian court system for trial.

You know what? Almost certainly, the judge made the correct ruling: In an ordinary civilian criminal trial, prosecutors obviously cannot use evidence obtained using enhanced interrogation techniques, while the accused was held without a lawyer, without the right to remain silent, and with no protection against self-incrimination.

But that, of course, is why we should not try terrorists captured on the battlefield in ordinary criminal courts. That's why we have the Guantanamo Bay Detention Center. Unlawful enemy combatants held "for the duration" in executive, Article II detention should not be subject to ordinary judicial rules, just as enemy soldiers in wartime have no "right to life."

But heck, who knew that if we tried Ghailani in an ordinary criminal court, the judge might treat him as an ordinary criminal defendant? It was a bolt from the blue!

September 10, 2010

Don't Sue, Don't Judge

Injudicious Judiciary
, Matrimonial Madness
, Military Machinations

Hatched by Dafydd

Two positions from the Lizards:

We both strongly believe that marriage should be restricted to opposite-sex couples, not currently married to anyone else, not too closely related, of age, and consenting. But we believe even more strongly that the definition of and rules for marriage for each state should be decided by the legislature, governor, and ultimately the people of that state... not by unelected, life-tenured federal judges.

We both strongly believe that openly gay men and women should be allowed to serve in all branches and capacities of the United States military, and we have said so, often and loudly -- perhaps to the detriment of readership, which is quite unified against our position. But we believe even more strongly that such a profound change must be made democratically by Congress and the President of the United States... not by unelected, life-tenured federal judges.

So even though we agree with the fundamental position of the Log Cabin Republicans that Don't Ask, Don't Tell should be repealed, we fundamentally deplore and reject the injudicious judicial process the LCR chose to "repeal" it.

August 26, 2010

Pyrrhic Evictory - the World Nods to the Lizards

We published a post titled "Pyrrhic Evictory" a couple of weeks ago, just a week after Judge "Dredd" Walker issued his August 4th ruling -- a date which will live in infamy -- that the traditional definition of marriage is and always has been unconstitutional. Walker's ruling would have come as a great shock to the authors of the Constitution; if the original Federalists were alive today, they'd be spinning in their graves.

In that post, I suggested that one of the most immediate serendipitous fallouts of the ruling would be in the race for California's governor, between the former eBay CEO Meg Whitman in the Republican corner, and the former worst governor in California history, Democrat Jerry Brown. (Actually, I believe he still defends the title.) Why this race in particular? Because Jerry Brown, now the Attorney General of California, flatly refused to defend the voter-enacted, state constitutional amendment Proposition 8 in court. Working in concert with "Republican" Gov. Arnold Schwarzenegger, Brown hoped that by the pair's refusal to defend the law, it would be swiftly overturned in federal district court by default judgment.

But Judge Dredd had other plans: He intended to hold a show trial to humiliate opponents of same-sex marriage (SSM), and no two elected pantywaists were going to thwart him! Accordingly, Walker allowed standing as defendants for a group called ProtectMarriage.com, the group that brought Proposition 8 to the ballot and got it enacted.

However, directly the show trial ended, Walker announced that in his august (and August) opinion, ProtectMarriage.com inexplicably lost the standing Walker himself had granted them, presumably on grounds that they're nothing but a bunch of bigots and homophobes... as proven by the fact that they dared defend Proposition 8. Consequently, Judge Walker has essentially ordered the Ninth Circuit and the Supreme Court not to accept any appeal of or writ of certiorari anent his Prop 8 decision... now that the urgent task of making a statement in favor of SSM is already accomplished.

This brings us, by a commodious vicus of recirculation, back to my prediction. In case you've forgotten in all the excitement, I predicted a fortnight ago that the ruling would terribly damage Jerry Brown's re-gubernatorial campaign, since he was one of those who said the people should not be represented in a case about -- the constitutionality of an amendment enacted by the people.

Today, the first post-Dreddnought Rasmussen poll was released... and Meg Whitman has leapt from -2 against Brown the day before the ruling -- to +8 today. That's a 10-point surge for the next governor of the Golden State.

Now some of that is simply that Brown's aggressively slanderous campaign against her had pretty much ended (except on Power Line <g>). The charges were not merely false but ludicrously so, and voters wised up fairly quickly. But since then, Whitman has come out foursquare in favor of Proposition 8, stating that when she is governor, she will defend it vigorously. I cannot but attribute at least some significant portion of her remarkable climb to the epic battle to defend Proposition 8 and traditional marriage.

Even many voters who opposed Prop 8 and support SSM are nevertheless beside themselves with outrage at the way the federal judiciary simply swatted aside a huge, statewide vote of 13.5 million citizens -- with the active connivance of our liberal Democratic state Attorney General and "Republican" governor. Patterico, of P's P, is one of them; he supports SSM and voted against Prop 8... but he accepts the finality of the vote, at least until a later vote might overturn it. (At which point, I would sadly accept the finality of that vote, and would fight to defend it against judicial tyranny.)

Patterico represents many tens of thousands of citizens, here and in every other state. Outraged Californios are already taking out their frustrations on Jerry Brown, and I predict a lot more will pile on by November 2nd. (Schwarzenegger is term-limited out, which is why Brown and Whitman are tussling over his soon to be former office.)

Even for supporters of SSM, the Prop 8 shenanigans perfectly mirror the genesis of what we have been calling the popular front for Capitalism and against government expansion: When the people vote, then berobed overlords unvote our vote with no better reason than their "superior, enlightened" vision -- then the proper response is first to chuck out all the bums who support those judges; and then, with a friendlier Congress, to impeach the kritarchs and kick out the JAMs. Via Rasmussen (and very soon other pollsters), the world is visibly catching up to our Big Lizards prediction. As Browning put it:

The year's at the spring,And day's at the morn;Morning's at seven;The hill-side's dew-pearled;The lark's on the wing;The snail's on the thorn;God's in his Heaven --All's right with the world!

No more playing defense with those who would sell out our liberty for their power. Starting today, let us prey.

August 11, 2010

Pyrrhic Evictory

Still thinking -- fuming -- about Judge "Dredd" Walker's insipid decision, in Perry v. Schwarzenegger, to render of no account the democratic vote of 13.5 million Californios, out of pique that we didn't vote as he wanted us to do. I have something somewhat profound to say (not very, just somewhat); but let's preface with a couple more predictions...

First, I suspect that Judge Walker, as Chief Judge of the United States District Court for the Northern District of California, assigned himself to hear the case against Proposition 8. According to numerous con-law professors, constitutional scholars, and working attorneys who have read Walker's opinion in that case, it's clear he was biased against the law (and its proponents) from the beginning and never took seriously any of defendants' arguments in support of it.

Who will be chosen for the three-judge panel of the Ninth Circus that will likely hear the appeal of Judge Walker's decision? The current Chief Judge of the Ninth Circuit is Alex Kozinski, who was nominated by Ronald Reagan and appears (by his list of political contributions back in 1992) to be a Republican. But selection of the panel is random, I believe; and unlike the "random" selection of liberal judges, I suspect Kozinski will actually obey the rules.

Considering that the Ninth is notorious for being the most left-liberal circuit in the entire United States (also the most overruled by the Supreme Court, for what it's worth), it's likely that at least two of the three judges on the panel will be ultra-left judicial activists. Ergo, I predict that the three-judge panel will uphold Judge Walker's decision.

So the next question is, will the Supremes accept certiorari on this case? I predict Yes: The constitutional implications of throwing out a statewide vote supporting values that are literally millennia old, and substituting one judge's radical opinion which would fundamentally alter society, are so extreme that the final Court really must pass muster on such a momentous decision.

And the last prediction: Assuming the Court takes up Perry, how will it finally rule? As I think I mentioned, I expect the usual suspects to line up as, well, as usual: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito will vote to uphold Proposition 8; Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagen will vote to overturn it and declare same-sex marriage (SSM) a fundamental right; and the tie-breaking vote will once again fall to Justice Anthony Kennedy, the Swingin' justice -- who, I predict, will reluctantly vote, with much hemming and dithering, to uphold the vote of the people on Prop 8. Thus I predict that the Supreme Court will overturn the district and circuit courts and reinstate the state constitutional amendment.

Now, on to the semi-epiphanic predictive analysis of some degree of profundity...

Democrats and liberals seem never to have even heard the term "pyrrhic victory;" certainly they have no idea what it could mean. By its very nature, the liberal philosophy is superficial, immediate, with a studied refusal even to consider consequences -- not merely the unanticipated but even the obvious and inevitable.

Liberalism is the Scarlett O'Hara of political philosophies: "I won't think about that now, I'll think about that tomorrow." So the idea of a "victory" that comes at such a terrible cost that it's actually a defeat is utterly alien to liberals; even when it happens to them, they don't recognize the connection to their own scorched-earth policies. But they're about to get a crash education.

A bit of history. The first traditional-marriage citizen's initiative enacted in California was Proposition 22 ten years ago; it passed by 61% to 39%.

After it was struck down by the California Supreme Court, the replacement Proposition 8 -- the same wording, but this time a state constitutional amendment -- passed by a weaker margin of 52% to 48%; but that vote was held in November 2008, during the Democrats' Obama-driven landslide victory across the country.

And specifically in California, where Barack H. Obama won by 24 points, 61% to 37%. Despite a massive Democratic victory in California's presidential race, congressional races, and state legislative races, the anti-SSM amendment nevertheless won by a statistically significant margin. (Even though the final polls of all three major pollsters here -- SurveyUSA, Field, and the Public Policy Institute of California -- showed Prop 8 losing.)

In other words, regardless of what people tell pollsters, when it comes to an actual vote, Californians strongly support traditional marriage and oppose same-sex marriage.

But along comes the liberal Bigfoot, telling us that our votes are irrelevant; state citizens have no right to determine the definition of marriage in California; and we peons should simply roll over and play dead when our robed betters bark. Slice it however you like, this judicially activist decision is not going down well in the state; Californians are angry and getting angrier by the day, even those who voted against Prop 8.

It's one thing to lose an election; it's quite another and a bitter thing to have the electorate itself slapped down by a liberal schoolmarm, wagging his finger in our faces and telling us to sit quietly and wait for judicial command.

No question about it, this is going to damage the campaigns of Democrats across the state; but particularly in the governor's race... where Republican former eBay president and CEO Meg Whitman squares off against the Democrat, former California governor and current state Attorney General Jerry Brown.

Why this particular race? Consider this: In his capacity as state AG, Brown is supposed to defend California laws against lawsuits; but because Brown is an ultra-liberal, and because he personally supports SSM, he declined to mount any defense of Prop 8. Had Brown had his way, plaintiffs in Perry v. Schwarzenegger would have been unopposed. (Not that it would have made any difference, since Judge Walker never seriously considered the defense, spearheaded by the "official proponents of Proposition 8 led by Dennis Hollingsworth," as Wikipedia put it.)

Thus the Democratic candidate is the very man who violated his oath and betrayed his state, just in order to screw California voters! The judicial activism of Judge Walker cannot possibly be ought but a boot to Jerry Brown's head -- especially in a year when the entire country (including California) is already appalled by the expansion both of the government's size and cost and also its intrusiveness.

At the moment, in the most recent poll -- Rasmussen, taken before the ruling -- we see Jerry Brown 2% ahead of Meg Whitman. That's within the margin of error; Gen. Brown got that slight "lead" by a massive campaign of slimy attack ads against Whitman... running on TV, on radio, in the newspapers, and in a number of prominent political blogs (including, sad to say, Power Line). Tellingly, Brown himself is actually polling lower today in Rasmussen than at any time since March; he just managed to pull Whitman down six points, while he only pulled himself down three, turning a Whitman +1 into a Brown +2.

In the next poll (or perhaps the one after, when voters start to mull over the ruling and Brown's role in egging it on), I expect to see that at least reversed, and maybe an even stronger movement by Meg Whitman. I believe that she is going to start using Jerry Brown's duplicity, disloyalty, and scorn for his own potential voters against him in her own TV adverts. (And I sure hope she starts buying ads on Power Line!)

Worse, I expect to see many, many Republican challengers, from Carly Fiorina challenging Sen. Barbara "Call me senator!" Boxer on down the ballot, also using the Democrats' complicity in disenfranchising thirteen and a half million California voters as a bludgeon in the "massively multiplayer" version of Whack-a-Mole, where each and every Democratic talpid has his or her very own GOP mole-masher standing directly over the mole hole.

Thus -- pyrrhic victory: Liberals, Democrats, and the loony Left "win" the court case, at least at the lowest, district level; but in so doing, even more of them than expected will find themselves evicted from their cosy offices and cushy deals, at least in the state of California.

Judge Walker's manipulative meddling may end up forcing the exact opposite effect he intended: It may elect a governor and Attorney General who will actually fight for Prop 8 in the courts... unlike the "Saboteur" General and the "Bad Samaritan" governor we have right now.

August 6, 2010

Should a Gay Judge Have Appointed Himself to Hear the Case Against Proposition 8?

Patterico asks a cogent question in a recent post: "Should the Prop. 8 Decision Have Been Made by a Gay Judge?" Or should Judge Vaughn Walker have recused himself from hearing Perry v. Schwarzenegger, the lawsuit filed to overturn California's Proposition 8, an initiative constitutional amendment banning same-sex marriage (SSM)?

Patterico concludes thus:

Still, if you see laws against gay marriage as discriminatory in the same sense that Jim Crow laws were, it’s tough to accept the premise that a gay judge could not ethically decide this case.... Would a black judge be required to recuse himself from hearing a challenge to Jim Crow laws? Somehow, the intuitive answer to that question is no, of course not. Why is this different?

This one is actually fairly easy to answer: By the time Jim Crow laws were being overturned in courts, America had already enacted numerous federal laws and constitutional amendments, an infrastructure of paradigmatic change, going all the way back to our Organic Documents, that collectively formed the basis for a national consensus that "all men are created equal."

Obviously not everybody agreed, or we wouldn't have needed to overturn such laws in court -- nor would we have needed to enact the 1964 Civil Rights Act. But a consensus does not require unanimity; and clearly, Americans were willing to accept in the abstract what they could not always practice in their own lives: That there is no significant difference in personhood between black and white.

Today, we absolutely accept the fact that gay men and lesbians are just as much "persons" as heterosexual men and women, and they have the same rights. Even those of us who oppose SSM accept that point without hesitation; you have to go to a repulsive, lunatic, little vants like the Irreverend Phred Phelps and his henchmen to find anyone disputing the basic humanity of gays.

But that's not the question, is it? We all agree that gays have the same rights as heterosexuals; the question is, what exactly are those rights anent marriage?

I believe that gays and straights both have the same marital rights -- to religiously marry anybody or any group of people they and their religion allow... but to legally marry only those people who meet certain qualifications, one of which is to be of the opposite gender. I have no objection to a gay man marrying a woman, gay or straight; just as I have no objection to a lesbian marrying a man, no matter his sexual preference.

It wouldn't even bother me if a gay man married a lesbian, then they had children... or even adopted. So long as the family has a male father and a female mother, I will grant it's as socially valid and as good for raising children as a marriage of two heterosexuals.

But I do not support a putative "right" to legally marry anybody one "loves", without exception or qualification. Marriage comes with a host of restrictions that bind everyone:

You cannot marry a person without his or her consent.

You cannot marry your sibling, your parent, or your close cousin.

You cannot marry a child.

You cannot marry multiple people at once (group marriage).

You cannot marry someone who currently is already married (bigamy).

And... you cannot marry a person of the same gender as you.

That last restriction applies equally to heterosexuals; consider two old biddies, best girlfriends, both widowed, and both completely straight, but who want to marry for the financial benefits. Sorry, ladies, you cannot. We forbid you to abuse the legal status of being married.

By contrast, I absolutely support the Supreme Court decision in Lawrence v. Texas, striking down laws against "sodomy," however defined. Why the difference? Because the right to associate (and yes, including sexually) is an issue of individual liberty. It also falls within the veil of privacy that, yes, I do believe restrains federal, state, and local government from intruding too deeply into the lives of free citizens. Simply put, a government that can control who you are allowed to sleep with or who you can live with is totalitarian.

But marriage is not a private affair; it's a public, communal celebration and societal endorsement of a relationship; it says, "This is a special relationship that we, in this state, believe is better than other types of relationships. Thus, to encourage this type of relationship, we will reward it above and beyond other relationships." Given that description, state citizens have the right to decide what particular types of relationships we will so celebrate and endorse.

We can decide how close a relationship must be in order to put that person off limits. We can decide how old a person must be to get married. If we so choose, we can decide to allow polyamorous marriage. And if we so choose, we can decide to allow SSM; but by the same token, if we choose -- which we have done -- we can likewise decide to disallow it. And until and unless we have the same legal infrastructure anent marital rights for gays as we had the 1940s-1960s anent civil rights for blacks, no damned court has the power to overturn the people's law and make its own law.

If it did have that power, then America would no longer be a constitutional republic... we would instead be a kritarchy, ruled by unelected, robèd lords with lifetime tenure.

So yes, it may well make a difference if the judge who decided the case is a gay activist. But that would be true whether or not he himself was homosexual; there are doubtless more heterosexual gay activists than homosexual gay activists. The only point in bringing up Judge Walker's sexual preference is that it's another brick in the wall, another piece of evidence that he might well be a gay activist... taken together with other pieces of evidence, including the thirty-eight years he has lived and practiced in ultra-liberal, ultra-gay-activist San Fransisco; his judicial record in toto (not just a couple of cherry-picked cases where he actually deigned to follow the law, instead of trying to rewrite it); and the fact that, as Chief Judge, he probably decided to appoint himself to hear this case.

And of course the vapid and tendentious opinion he wrote, which also smells strongly of judicial activism.

For that purpose, exploring whether Judge Walker is a gay activist, it's not unreasonable to bring up his own sexual preference; by itself, it's not dispositive -- but it's not irrelevant, either.

January 21, 2010

If John McCain Is Wise...

Injudicious Judiciary

Hatched by Dafydd

...He'll swallow and admit his lousy bill was already dead yesterday.

The Supreme Court -- narrowly and bitterly divided along the usual lines -- has finally put the nail in the heart of Sen John S. McCain's (R-AZ, 63%) worst and costliest error: the Bipartisan Campaign Reform Act of 2002, a.k.a. the BCRA, a.k.a. McCain-Feingold. Its core is now deader than a clam:

Sweeping aside a century-old understanding and overruling two important precedents, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections....

“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of its conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Justice John Paul Stevens read a long dissent from the bench. He said the majority had committed a grave error in treating corporate speech the same as that of human beings. His decision was joined by the other three members of the court’s liberal wing.

It's hard to imagine any response to the bolded quotation above from the majority opinion that doesn't depend upon the overt or implicit rejection of freedom of speech. I haven't read Justice Stevens' full dissent -- it's 90 pages -- but from what I have read, it's just a long-winded exercise in sleight of tongue, dancing around his core disagreement with the very idea of universal freedom of speech. It boils down to "free speech for me but not for thee."

You can find the opinions here; for your reading pleasure, here's the breakdown of authorship:

Here is, I think, the crux of Stevens' dissent; in this and all quotations from the opinions, I omit all citations and references:

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

But freedom of speech is not restricted to "eligible voters;" we've always considered it universal and fundamental (though not absolute, of course).

First , a liberty is only fundamental if it applies equally to all; otherwise it's a government-created privilege, revokable at will.

Second, we're not talking about a "corporation" broadcasting speech, some alien entity with no existence apart from a legal fiction for convenience. The corporation comprises its owners, each of whom is a legal person; it's not the corporation that speaks, its the all-too-human owners.

When the owners of a corporation -- or their representatives on the board of directors -- use corporate funds to pay for an advertisement saying "vote for Joe," it is functionally identical to the same people broadcasting the same advert, but paying for it out of their personal checking accounts. The only difference is legal, and it's a distinction that was created by previous laws and the judicial intepretation of those laws... it's not a natural or obvious distinction to ordinary people. If I incorporate and pay for this blogspace out of corporate funds, do I no longer enjoy freedom to say what I want here, without government looking over my shoulder?

It's preposterous to argue that these six guys have a fundamental right to speak if they pay for it out of the money in their home vault... but they can legally be silenced if they use funds of a corporation they own -- at least silenced in the final two months of a campaign, when political speech would be particularly effective.

If they can be so silenced, then we have no fundamental right to freedom of speech; we have a conditional right under the control of the federal government. Once freedom of speech is no longer fundamental, the feds can suppress it on almost any ground; see a previous post of ours about Geert Wilders, currently being criminally prosecuted in the Netherlands for insulting Islamism.

Stevens devotes a great many pages complaining about the "scope" of the decision (the majority should have decided the case on narrow, crabbed grounds), and singing paeans to "stare decisis," the principle that "settled doctrine" should be respected. He admits he's not an "absolutist" on that issue; indeed, it would be hard for a justice who supported the Hamdan decision, giving constitutional rights as a criminal defendant to an unlawful enemy combatant captured on the battlefield, to portray himself as anything but a judicial radical (yes, I include Anthony Kennedy).

So evidently, stare decisis applies only to precedents that Justice Stevens happens to like, such as Roe v. Wade (and McConnell v. FEC or Austin v. Michigan Chamber of Commerce, the cases the Court overturned today). Sadly, Stevens is actually the best of the usual suspects on the left side of the Court: I doubt that Justices Ruth Bader Ginsberg, Stephen Breyer, or Sonia Sotomayor would even bother pretending to respect judicial restraint or settled law, when precedent is confronted by their own revolutionary aspirations.

Roberts put the fundamentality of freedom of speech as starkly and clearly as I've ever seen in a Court opinion:

The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful inexpressing their views on matters of public concern. Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations -- as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.

The Court properly rejects that theory, and I join its opinion in full. The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.

Or to put it into Saul Alinsky's terms, freedom of speech is universal: It applies not only to the "have-nots" (rather, their spokesmen) but to the "haves" as well. It's both a danger and a signal of American exceptionalism that until today, the law did not recognize that universality, instead advantaging the have-nots. Would any real American argue that if a rich man were arrested for a crime, he shouldn't be allowed to hire an attorney? That he can be forced to testify against himself? That he could be tortured into confessing, just because he has money? It's facially absurd.

Next, Roberts brilliantly disposes of Stevens' claim that today's decision was unnecessarily broad, that the majority should have decided the case more narrowly, rather than striking down the heart of the BCRA. Roberts first notes that, since the minority agreed with the circus court that Citizens United had no case, they must necessarily have found, as did the majority, that the "narrower" defenses put up by Citizens United were without merit.

Citizens United's attorneys did the usual good job: They argued a host of narrower issues -- such as the idea that the law wasn't meant to apply to a group like them, that the anti-Hillary Clinton movie wasn't "express advocacy," and so forth; and they also argued that the law itself was unconstitutional. Once the Court had disposed of the lesser, narrower defenses, it was duty-bound to consider the final defense as well: whether the BCRA itself violated the First Amendment.

Here's Roberts:

The dissent advocates an approach to addressing Citizens United’s claims that I find quite perplexing. It presumably agrees with the majority that Citizens United’s narrower statutory and constitutional arguments lack merit -- otherwise its conclusion that the group should lose this case would make no sense. Despite agreeing that these narrower arguments fail, however, the dissent argues that the majority should nonetheless latch on to one of them in order to avoid reaching the broader constitutional question of whether Austin remains good law. It even suggests that the Court’s failure to adopt one of these concededly meritless arguments is a sign that the majority is not "serious about judicial restraint."

This approach is based on a false premise: that our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law. It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right. Thus while it is true that "[i]f it is not necessary to decide more, it is necessary not to decide more," sometimes it is necessary to decide more. There is a difference between judicial restraint and judicial abdication. When constitutional questions are "indispensably necessary" to resolving the case at hand, "the court must meet and decide them." [Bold emphasis added]

Finally, Roberts knocks down the "stare decisis" red herring... Stevens' view that precedent should always be respected when he agrees with it:

Fidelity to precedent -- the policy of stare decisis -- is vital to the proper exercise of the judicial function. "Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." For these reasons, we have long recognized that departures from precedent are inappropriate in the absence of a "special justification."

At the same time, stare decisis is neither an "inexorable command," nor "a mechanical formula of adherence to the latest decision," especially in constitutional cases. If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants....

Stare decisis is instead a "principle of policy." When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right. As Justice Jackson explained, this requires a "sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other."

In conducting this balancing, we must keep in mind that stare decisis is not an end in itself. It is instead "the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion." Its greatest purpose is to serve a constitutional ideal -- the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.

But apart from the fundamental right, there is another here that the Court could not address, as it has nothing to do with the Constitution or the law per se. The fact is, McCain-Feingold has been a manifest failure from the very beginning.

Its avowed purpose was to get the money out of political campaigns; but more money is spent now than ever before. And the legal distinctions crafted by the BCRA merely spawned a labyrinth of newly created entities, such as "527s", whose sole purpose is to circumvent all the rules and regulations on political speech that Sens. McCain and Russell Feingold (D-WI, 100%) thought would "control" speech -- when that speech came from corporations, i.e., the "haves." Both McCain and Feingold, as well as most of the members of Congress who voted for it, and even the president who signed it, have pretensions to "populism;" they love nothing more than to bash the "privileged" on behalf of the masses. (I can say the same about the Obamacle's proposed tax on banks and punitive regulation of banking pay and practices.)

Critics of the decision say it will "open the floodgates" of campaign funding. Well what the heck did they see during the 2008 presidential election? Barack H. Obama alone spent more than half a billion dollars.

The idea that the BCRA would curtail spending was idiocy on stilts; and I hold it very much against McCain for writing it, and against George W. Bush for signing it. The only people really hurt by it were legitimate issue-advocacy groups, who had to lawyer up and waste money on defensive legal strategies, just to promote their own political issue without running afoul of some authoritarian tyrant at the Federal Elections Commission and his draconian interpretation of McCain-Feingold's "restrictions."

The BCRA is mostly gone; the Court upheld the reporting requirements and limits on direct contributions to political campaigns, but that much could probably have passed without controversy in 2002, or even today. On the call of the issue, Sen. Chuck Schumer (D-NY, 100%) is right: The ruling in Citizens United v. the FEC absolutely "guts" the free-speech restrictions that were at the heart of the controversy over the BCRA.

And I say good riddance to bad rubbish.

If John McCain has a functioning brain, he should put on his manly gown, gird his loins, and pull up his socks: He needs to admit the BCRA was a gross violation of liberty -- and a colossal failure to boot. If he does, my respect for him will grow; if instead he pounds the table and denounces the Court's majority as elitists and corporate apologists, he will lose a great deal of the good will I felt for him during the 2008 campaign.

As many have noted, this has been one heckuva week for anti-liberals:

Scott Brown won in Massachuestts;

Erroll Southers withdrew as the nominee to head the TSA;

The U.N. finally admitted that the glaciers in the Himalayas are not about to vanish anytime soon, as they had claimed for years;

January 7, 2010

Voting Rights for Felons: Presto Retro!

Patterico has posted on this topic as well -- the three-judge panel of the Ninth Circus that just ruled that felons must be allowed to vote, even from their prison cells. He posts from a lawyer's, and especially a prosecutor's point of view; and in his post, he dressed me down a bit for my previous post here... or so it seemed to me. Patterico writes:

Dafydd ab Hugh’s post on the decision sounds the right notes, I think. However, Dafydd has not read the decision or the studies upon which it is based, and so he has failed to grapple with the claims of the sociology professors who claim to have looked at the very variables Dafydd accuses the court of ignoring.

I would like to encourage Dafydd and any other interested readers to poke through the links I have provided. There are nuggets a plenty in the various studies and other links.

My response may be solitary, poor, nasty, and brutish; but at least it's not short!

The first charge is certainly correct; at the time I wrote the post, I didn't have the decision available to me. I couldn't even find the name of the the third judge (turns out to be Stephen Reinhardt, a name not unknown to many of us).

But to say I have "failed to grapple with the claims of the sociology professors who claim to have looked at the very variables Dafydd accuses the court of ignoring" is only true in the narrowest of meanings: While I didn't grapple with these particular studies by those particular sociology professors, I have been "grappling" with identical claims by interchangeable sociology and criminology professors for more than twenty years!

I wasn't born on the turnip truck yesterday.

And I've learned it's a complete waste of time, because the studies they produce are just a beard for the real function, which is to find a friendly judge or panel, as they did here, and give them any slightest hook to hang their ideology... which they also did. Professors Crutchfield and Beckett could have introduced a wind-up monkey with a plastic banana as their sole exhibit, and Judges Stephen Reinhardt and Wallace Tashima would have given in to their inner guilt and ruled the same way. We were preaching reason to the asylum choir.

The fact is that none of these claims is new. Each has been made, then debunked, in one form or another, in service to one crank liberal "reform" or another, since the dawn of all time (that is, the 1960s): that a racial disparity in measurement X -- incarceration, conviction, trial, arrest, or search -- proves unlawful and intentional racial discrimination by some or all elements of the justice system.

In the very beginning, the anointed were content to point to any racial disparity at all. When evidence mounted far past the "overwhelming" stage that, contrary to liberal dogma and utopianism, people from different cultures do indeed commit crimes at different rates, the anointed realized they had to give some ground.

Ever since the 1980s, when I first began debating this issue in bulletin boards (anybody remember those?), the pro-reform side of academe has followed the same pattern:

The new researchers cite previous researchers who found no discrimination -- and dismiss them as naive or bought off.

The new researchers admit that some of the racial disparity can be explained by real differences in behavior... that is, not by direct racial discrimination; this makes them look reasonable and sets you up for the Fool's Mate.

But, they argue, not all the discrepency can thus be explained (to their unattainable satisfaction) by proper and legal responses to real differences.

Therefore, they conclude, the remaining "gap" must be due to racial discrimination. There's no other explanation, at least none they will consider.

It's very effective, particularly on kritarchs drunk on their own power, just itching for a chance to implement divine judicial controls, enforcing radical liberalism.

I didn't have access to the particulars of this specific batch of anointed; but even if I had, I still wouldn't have bothered "grappling" with their precise claims, because that's not the problem. And my reasoning is almost certainly similar to that of the state's attorneys, and why they didn't go into the specifics of the studies, either: At core, this case hinges on principles completely independent from choosing one of two competing answers to a controversial and active scientific question.

Diving headfirst into the steaming vat of statistics is a mug's game, because it begs the real question. There is literally nothing anyone could say, no evidence that could be produced, that would persuade the plaintiffs that policing and the courts were not citidels of segregation and redoubts of racism: It is part of their fundamental-materialist religious faith.

When setting public policy on vital democratic issues related to scientific questions (hello, global warming), there are always three considerations -- threshold conditions, actually; and none covers what I think Patterico suggested I should have done:

Is the science settled? E.g., is there a scientific consensus among criminologists and sociologists that the criminal justice system in Washington is inherently racially discriminatory, violating the rights of legitimate voters?

If so, then what options exist to alleviate the problem? In this case, what can Washington do to bring itself into compliance with federal standards and its own state standards of racial neutrality?

Finally, among all those options, which is the least disruptive to liberty, social order, and the will of the people? In this case, if people are being wrongfully disenfranchised, what is the least disruptive way to let the actual victims start voting again?

(Sorry for all the bullet points, but some arguments really lend themselves to such constructs.)

Alas, I don't think there is a very good match between the questions above, which should inform all major policy decisions, and the demands of a federal court trial, which is an adversarial exercise in which one side generally wins and the other loses. That's too bad... because in fact, not a single one of the three threshold conditions above is satisfied (and all three need to be). Moreover, when the thresholds are not met, the judiciary has no business interfering in public policy... even apart from any great principles of freedom that trump the scientific quibbling.

Now, if a particular prisoner wants to argue that his personal voting rights were violated, let him make that claim and duke it out in court. That would at least be a judicial task.

But instead, the question that the court considered (and ruled in favor of) was grotesquely anti-democratic, collectivist, and, to put it bluntly, profoundly unAmerican: Not whether the voting right of any particular prisoner was violated, but whether the rights of all blacks and Hispanics in Washington state were violated.

And the substance of the "right"? Why, the right to have the votes of all blacks and Hispanics, law-abiding and convicted felon alike, count for the Democrats. I won't mince words; the liberal-activist Democrats want more electoral victories, and they think this will do it.

It's the Lani Guinier Conundrum: Does a bloc of voters have the right to win a certain percent of the time? In 1993, Bill Clinton nominated Guinier to be Assistant Attorney General for Civil Rights. Her nomination ran into a buzzsaw in the Senate and was eventually withdrawn.

She believed that indeed yes, blocs of minority voters -- specifically blacks and Hispanics -- had a right to win, even when they were in the minority; otherwise you have a "tyranny of the majority," she argued in the book of that title. (The hidden racist assumption is that all "minorities" think alike... or at least they should!) Thus, Guinier supported various weighting schemes to make each minority vote count for more than each of the votes of the majority. (She had to have assumed, again, that each class would vote its "class interest.")

I'm convinced that is precisely why the present case was brought: Not that the plaintiffs really cared that felons be allowed to vote, but that they assumed that a big, new bunch of black and Hispanic voters previously disallowed from voting would, when finally unleashed, vote solidly liberal-Democratic.

(Patterico notes another point: Many prisons are sited in rural areas, not in the midst of huge population centers, for obvious reasons. Thus, that "captive audience" of voters would exert a super-heavy, possibly determinative influence over local elections about local issues. In my opinion, they could practically take over small towns!)

I haven't forgotten the three questions above; we'll get back to them. But we're still dealing with the fundamental principles, and why the specific claims of liberal sociologists are actually irrelevant.

We have a fundamental principle in the United States; and that is that "rights" inhere in individuals... not factions. It does not matter how a right will affect the results of an election; freedom of speech applies to all, not just favored constituencies; either every individual has the right or none does.

In this case, no individual legal voter is denied his right to vote merely because a convicted felon with a similar skin color has lost his right to vote. My voting right is intact, even though white convicted felons housed nearby must sit out the election. However much the faction of liberal, black and Hispanic Democrats may wish they could scavange a few more votes from the prisons and among those felons who have served their time, they have no "right" to those votes.

The hyper-principle here is that the Voting Rights Act was never meant to hand more power to a particular voting faction; it was meant to protect each individual from being wrongfully denied his constitutional and state-constitutional right to cast a vote. It no more violates the voting right of a legal voter to disenfranchise convicted felons than it does to disenfranchise children, non-residents, aliens, or those who do not register to vote.

To say otherwise is to say that everyone can vote... mewling infants, alien serial killers, foreigners living abroad, and the dead. (But if the dead aren't allowed to vote, how will Democrats ever win another election in Illinois, Louisiana, or New Jersey?)

That is why it literally should make no difference whether the judicial system in Washington state is racist, because the remedy plaintiffs sought (and the Ninth Circus granted) was wild overkill, and a complete non-sequitur:

If plaintiffs could prove that blacks and Hispanics were being convicted of bogus charges in order to prevent them from voting, then they should bring a case to release those particular blacks and Hispanics and expunge their convictions.

If plaintiffs could prove that blacks and Hispanics were being frightened away from the polls by a latter-day Bull Connors, then they should bring a case to prevent the police from doing so, and perhaps award damages to the actual victims.

But under no circumstances should the "remedy" be to allow all felons, willy-nilly, to vote, because that is not even the problem they allege. The problem they allege is that the justice system is racially discriminatory, not that it's unconstitutional or illegal, as a general point, to suspend or eliminate a felon's voting rights (along with his right to possess firearms, his right to join the armed services, and so forth).

The proof is simple: If they were asserting a general right of felons to vote, then why bring up racial discrimination at all? If a felon has such a right, then he has it whether he is black, Hispanic, Asian, American Indian -- or white; and whether he is incarcerated in a city that has a discriminatory justice system or one whose justice system is squeaky clean, even by Stephen Reinhardt's standards.

By relying on claims of racial discrimination and the Voting Rights Act, plaintiffs admit that they only assert that some felons have the right to vote, not every felon everywhere; some felons are more equal than others. A black felon housed in Massachusetts has no such right; but if he's transferred to a prison in, say, rural Georgia, where the justice system may be racially discriminatory, then he would suddenly gain the right to vote -- even if he were never detained, searched, arrested, tried, or convicted in that county. Quelle surprise!

That is why I didn't even bother examining the claims of racial discrimination in the Washington justice system: As Perry Mason would say, because it's irrelevant, incompetent, and immaterial... and that is the part of this debate that has not changed since the 60s (when the lunacy began), nor since the 80s (when I began debating the lunatics).

All right, with the principles clarified, we could stop right there; we don't reach the question of the science. But we're not a court, so we can still ask those three questions about this particular issue. In case you've forgotten in all the excitement, here they are again:

Is the science truly settled?

If so, then what are all the options available to the state alleviate the problem?

Finally, among all those options, which is the least disruptive to liberty, social order, and the will of the people?

On the first question, no, the science is obviously not settled, because many criminologists and sociologists argue that the justice system is not inherently racially discriminatory; as Patterico notes, the plaintiffs' experts actually cite some of those disagreeable dissenters.

"Not settled" guarantees that somebody is wrong here. It doesn't guarantee anybody is right; in theory, everyone could be wrong! But at the least, the anointed reformers could be wrong; the scientific method will have to sort it all out... assuming it's allowed to function, unlike the Climategate fiasco.

So far as I know, Patterico is not qualified to mediate between competing scientific claims about racial disparities and racial discrimination. Certainly neither am I, despite my math background; the intricacies of the science are well beyond me. But neither is either Reinhardt or Beckett; so where do they get off, ruling that Crutchfield and Beckett had better science than other researchers who found no illegal discrimination? Has either robèd gentleman taken even a single university-level course in statistics?

For an encore, Reinhardt and Tashima will issue a legal opinion on the Continuum Hypothesis, whether an infinity exists strictly between ℵ0 and ℵ1; the mathematical world waits with baited hook.

As I noted last post, all criminologists (including those hired by the plaintiffs in this very case!) agree that people from different cultures do indeed have different crime rates; the only disagreement is whether that behavior completely explains the conviction discrepency. Ergo, there is no consensus that the system is racist, and the very first threshold condition is not met.

Mind, all three must be met before it's legitimate for judges to monkey with voting or legislating. The anointed reformers have already lost the argument (though not the case, alas, at least not yet). But in fact, they lose on both other points as well:

They failed to enumerate all the available options, or even all the obvious ones. For example, they didn't suggest that each convicted felon's case should be reviewed, and voting rights granted only where a significant likelihood exists that the convict was railroaded due to racial discrimination. Why should a white convict caught red-handed robbing a Tofu store have his voting rights restored? What does that have to do with the plaintiffs' race-based theory of the case?

Finally, nobody has claimed, not even Patterico, that the majority judges weighed several options for dealing with the supposed racism within the justice system -- then picked the least disruptive of them all. I conclude a complete lack of parsimony; they jumped right to the most radical "remedy."

See? I didn't forget.

So the long and the short of it [hah, try and find the "short"!] is that I didn't grapple with the specifics of the claims by the anointed reformers because it's a dead-end detour; it has nothing to do with what's so wrongheaded about this decision. The scheme is as old as dirt, and I figured out a long time ago that there is never any closure arguing with people like Professor Crutchfield: He'll let you horse him around from one inconsistency to the next; then when you get tired and wander away, he'll loudly declare victory.

I went straight for the rhetorical jugular, the unAmericanness and radical nature of this decision. I have no regrets.

To add collectivist offense to insult (they went long past mere injury), their reasoning was so racially byzantine that it sounds like a parody: A greater percent of blacks and Hispanics are incarcerated than whites; therefore, depriving these felon convicts the right to vote from their prison cells violates the 1965 Voting Rights Act!

"I can hear the cuckoo singing in the cuckooberry tree..."

Say -- wouldn't the mere fact that blacks and Hispanics are jailed at greater percentages than whites all by itself violate the 1964 Civil Rights Act ban on segregation? Let's mandate that all races be incarcerated at exactly the same percentage as their representation in society: We let all the excess blacks and Hispanics go free, and send an appropriate number of whites and Asians to prison to balance it out, even if they haven't been convicted of any crime. Sounds like a natural extension of the court's reasoning to me.

(This is a non-trivial analogy: The reasoning of this panel is that the punishment violates the Voting Rights Act because, due to black and Hispanic overreprepresentation in prison, those federally defined races suffer a "disparate impact." But by the same logic, if blacks and Hispanics are incarcerated at a greater rate than their numbers in the population, that too is a "disparate impact" that dictates where people are allowed -- or in this case, required -- to live on the basis of race. I'm certain the next step is to do just what I sarcastically suggest in the paragraph immediately above.)

The majority decision was written by Judge Atsushi Wallace Tashima, who was first nominated to the bench by Jimmy Carter in 1980, then elevated to the Ninth Circus by Bill Clinton in 1995 (confirmed in 1996); the dissenter -- she wanted it remanded back to the courts to consider whether this calamity of non-voting felons was mitigated by a recent Washington state law making it easier for felons to recover their right to vote after finishing their sentences -- the dissenter, Margaret McKeown, was nominated by Bill Clinton in 1997. (I cannot find the name of the concurring judge.)

In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco said the Washington law violates the federal Voting Rights Act because evidence showed discrimination against minorities at every level of the state's legal system: arrest, bail, prosecution and sentencing.

If the ruling survives, it will be binding in the circuit's other eight states, including California, which denies voting rights to 283,000 convicted felons in prison or on parole, according to a report from the nonprofit Sentencing Project.

About 114,000 are African Americans, who are disenfranchised at seven times the rate of the general population, the report said.

Among those in Washington state who commit crimes, "minorities are more likely than whites to be searched, arrested, detained and ultimately prosecuted," Judge A. Wallace Tashima said in the appeals court's majority opinion.

For example, he said, studies showed that African Americans in Washington were more than nine times as likely to be in prison as whites and 70 percent more likely to be searched, even though a study of one police department found that officers were more likely to find contraband when searching whites.

Findings were similar for Latinos and Native Americans, none of which could be explained by differences in crime rates, Tashima said.

It's an odd kind of racism, however, that discriminates against blacks and Hispanics but in favor of Asians, who are so underrepresented in prison that they're routinely excluded from all statistical analyses of the prison population by race. This despite the fact that racial discrimination against Asians has a long history in the United States going all the way back to the mid-19th century. (American Indian is a separate category in our "race-neutral" federal taxonomy of race.)

Oh, well.

It will probably be struck down anyway by the Supreme Court, if not by an en banc hearing of the Ninth:

A state appeals court in San Francisco upheld California's voting law last year. Three other federal appeals courts have ruled that the Voting Rights Act does not apply to bans on voting by felons.

"Part of being a good citizen is obeying the laws and not doing things to other citizens that are so egregious that you end up in prison," said Washington Secretary of State Sam Reed, who promised an appeal of the ruling. "If you do, you are going to be denied your right to participate as a full citizen in our society."

Nevertheless, let's pick through the detritis of legalisms the court appears to have relied on in this wretched decision, propositions so risible that only a lawyer could argue them. It won't take long (compared to reading Tolstoy):

Blacks are "disenfranchised" at a rate not proportionate to their numbers within the jurisdiction of the Ninth Circuit Court of Appeals; this clearly proves the entire justice system is racially discriminatory.

The assumption here is that all races, cultures, sexes, ethnicities, and nationalities should logically commit crimes at the same rate; thus, we would expect black teenagers living in Compton or Watts (or whatever the equivalent ghetto is in Washington) are no more likely to commit a felony than a Japanese-American soccer mom living in Beverly Hills. Ergo, if we find that more inner-city black youts per capita are imprisoned than Asian mothers of middle-school kids, we've proven illegal discrimination.

Anyone who accepts such a line of hooey is a dolt, robes or no robe.

Clearly, different races have different propensities towards crime. I do not believe this is due to genetics; rather, the cultures they have grown up in and voluntarily internalized "enable" wicked, evil, criminal behavior more than do other cultures. (And yes, before you ask, I have indeed read the Bell Curve and find many of their arguments unpersuasive.)

For example, the statistical tables for the 2006 National Crime Victimization Survey, conducted annually by the Justice Department's Bureau of Justice Statistics, finds (Table 40) that blacks account for 31.7% of all completed violent crimes (single offender), including 42.2% of all completed robberies and 50.8% of all completed robberies with injuries.

Yet a quick glance through at the U.S. Census numbers for 2006 shows that blacks make up only 13% of the population (which is likely an overcount, since it's based on self-report). Even accepting this probably exaggerated figure, that indicates blacks commit violent crimes at a rate two and a half times more than their percent of the population; they commit robberies at three times their numbers; and they commit robberies with injuries to the victim at a rate four times their numbers.

Every criminologist will tell you the same thing: Blacks and Hispanics commit more violent crimes per capita than do whites; though ideologically reassuring for some, the axiom of "cultural equivalence" falls apart in the real world. Thus merely citing "disproportionality" proves nothing about causality.

(For that matter, 93% of those imprisoned in 2008 were male; isn't anyone going to investigate the "obvious" sex discrimination against men?)

Minorities are more likely than whites to be searched, arrested, detained and ultimately prosecuted.

Searched: If the victim describes his attacker as black, Hispanic, or Asian, shouldn't the police focus their searches on people who at least meet the description? Or should they stop and search white senior citizens, even when the victim says he was robbed by a young black male, just to even things out? This is lunacy.

Arrested, detained, prosecuted: Police arrest or detain suspects when their investigations find evidence supporting an arrest or detention. If the court wants to rule that racism pervades "the system," shouldn't they at least point to evidence that, say, blacks found with crack cocaine are routinely arrested, while whites found with crack cocaine are routinely set free?

If there was any evidence of such, I strongly suspect it would have been reported by somebody; yet I read nine separate articles and found no reference to any such evidence.

Minorities are more likely to be convicted than whites who commit crimes, and more likely to be incarcerated if convicted.

The SFGate article didn't mention anything about conviction rates or sentencing, but that must (by definition) explain the "missing" percent to account for the higher rate of incarceration of racial minorities than whites. There are a number of non-racially discriminatory reasons why certain minorities could be convicted at a rate higher than whites (and much higher than Asians):

Type of crime -- Some felonies, such as robbery, are more easily prosecuted than others, such as confidence games, burglary of unoccupied buildings, or insider stock trading, due to the differential impact on a jury of eyewitness testimony v. forensic testimony. Blacks and Hispanics commit violent crimes at a rate higher than whites, but whites probably commit nonviolent crimes at a higher rate than do blacks. Put the two together, and you have part of the incarceration answer.

Poverty of defendant -- It seems self evident that people with money stand a better chance of being acquitted, or if convicted, a better chance of avoiding prison time, than poor people; quality of representation plays a huge role at trial (duh). It might be unpleasant to realize that the rich get off in situations where the poor, with their court-appointed attorneys, get jugged... but it is not due to race, as the O.J. Simpson trial proved.

A lower percent of blacks and Hispanics than whites and Asians are able to afford a high-powered attorney. But if that is now "evidence" of racial discrimination in the courtroom, then we may as well say that the undeniable fact that a greater percent of whites than blacks can afford big houses "proves" racial discrimination in the real-estate market. What next -- must we have racial quotas for mansion ownership? Let's just ban all private housing and make everyone live in identical, government-owned shoeboxes.

Attitude at trial -- Do we know for sure that black and Hispanic defendants are no more likely than whites and Asians to have a truculent, belligerent demeanor, leading juries to be more likely to convict them? I sure don't, and it doesn't seem facially obvious to me that childhood and adult-selected culture would have no effect on how a defendant acts during his trial. Again, combine the two, and you have defendents of certain races sabotaging their trials by their own aberrant behavior.

Defendant's plea -- The BJS reports that of those defendants sentenced for a criminal offense in 2006, 94% pled guilty. But how does that break down by those sent to prison and those given probation or just a fine? Is a defendant more likely to go to prison if he pleads guilty, or if he pleads not guilty and vigorously contests conviction? If the former, as I believe if it, and if blacks and Hispanics were more likely to plead guilty than whites and Asians, that too would trend towards explaining why some races are overrepresented in prison.

Prior convictions -- I haven't seen any statistic on how many blacks and Hispanics have prior convictions versus how many whites and Asians; this can certainly affect whether the convict is sentenced to prison. Where is the study on this question?

There are five confounding factors just off the top of my head, ten minutes' thought. No story I've read has raised a single one of these factors; evidently, they don't fit what Andrew Breitbart calls the "story-board" of this issue -- the comic-book tale that journalists really want to tell -- and all facts will be tortured until they surrender to it. In this case, the story-board is summed up by some jerk at Newsweek:

But the issue of prisoners participating in our democracy buries the real news in the decision. The court threw out Washington's law because its criminal-justice system is biased against minorities. The problem isn’t with disenfranchising prisoners, it’s with a state legal system that unfairly throws so many people of color in prison that their voting power is diluted.

This is followed by a slavish recitation of the statistical "proof" of discrimination, about which seldom is heard a discouraging word.

What it really boils down to is that the burden of proof should be on those claiming the entire justice system is riddled with racism... not on the rest of us to "prove" that racial discrimination (by whom?) didn't play a role in some black mugger with mutiple priors being sent to the Concrete Mama in Walla Walla.

Let's swing back to the Fox News story for a moment; this is the quotation that fired me up to write this post:

The two appellate judges ruled that disparities in the state's justice system "cannot be explained in race-neutral ways."

What do they mean by "race-neutral?" I think it's pretty clear that they demand that all races commit crimes in lockstep with their percent of the population. When that doesn't happen, they immediately see racism as the only possible explanation.

Today, their solution is to allow imprisoned felons, who have shown contempt for the law, to vote on who will create those laws; that is, to remove that punishment for crime. But tomorrow it may be, as I suggested, to simply force the prison system to precisely mirror the racial makeup of the country... no matter what disparate impact that would have in the real world on whites and Asians accused of crimes.

But there is a deeper, even more insidious racism in this case, and it oozes from every pore of the majority: By ruling that denying voting rights to convicted felons discriminates against minorities in general, two judges are equating felons of all races with the entire minority population. It's as bad as saying an entrance exam for getting into university "discriminates against blacks." Why, because blacks are known to be unusually stupid?

How stunningly offensive. Crikey, what a horrendous calumny that is on the honest, law-abiding, minority population of the entire western United States.

How does Los Angeles Mayor Antonio Villaraigosa feel to learn that anti-punishment radicals equate his voting rights with those of convicted felons, or argue that Villaraigosa is statistically "more likely" to be sent to prison than, say, San Francisco Mayor Gavin Newsom? I would be hopping mad.

This entire decision of the Ninth Circuit is based upon collectivist reasoning, seeing every person who happens to be black or Hispanic as nothing but a representative of his race, felons an all. The court gives no weight to the individual choices made by free individuals in a free society; it's a vile, despicable worldview that has more in common with Jim Crow than with the Voting Rights Act.

The best defense against racism -- the ultimate collectivism -- is not more collectivism, but rather treating people as individuals. Alas, I suspect it will be a long, long time before the Ninth Circus dips a toe into such a radical pond as individualism.

November 14, 2009

Just Wondering...

Injudicious Judiciary

Hatched by Dafydd

If Attorney General Eric Holder and President Barack H. Obama argue that an American federal district court has jurisdiction over Khalid Sheikh Mohammed -- all of whose alleged crimes were committed outside the United States -- simply because he plotted to kill Americans... then would they also argue that the same court has jurisdiction to arrest and try Iranian President Mahmoud Ahmadinejad?

After all, he certainly plotted to send his Qods Force minions to kill Americans in Iraq; and they have successfully done so.

November 13, 2009

Michael "Miss-the-Point" Medved Strikes Again

In the first hour of his show today, Michael Medved was objecting to the staggeringly stupid decision by Attorney General Eric Holder to put Khalid Sheikh Mohammed, Ali Abd al-Aziz Ali, Walid bin Attash, Ramzi bin al-Shibh and Mustafa Ahmed al-Hawsawi, each accused of planning the September 11th attacks, on trial in a civilian court in New York City. (Of coruse, the policy could only have been announced had it been enthusiastically approved by President Barack H. Obama; so let's not blame Holder... blame Holder's boss.)

Well of course Medved opposes the scheme; he is (generally) a conservative, and what conservative could possibly support such an asinine policy?

But I was driven to distraction when Medved explained why he was against it. Because of the danger it would provoke another terrorist attack against New York? Because of likely attempts by terrorists to free the Gitmo Five? Because of the horrible risk that they might be acquitted, simply because we would be hamstrung by threats to national security?

Why no: Michael Medved's main argument, which he repeated over and over, was that such a trial would cost too much money.

"This could cost as much as a hundred million dollars!" he hyperventilated -- which, by the way, is less than one one-millionth of the cost of ObamaCare. Several callers took their cue from Medved, calling to complain about wasting all that taxpayer money.

Where to begin? Talk about missing the dead cow on the tennis court. The reason the Holder decision is utterly insane is not the money; and it's not that it would give a "platform" for the terrorists to spout their anti-American propaganda, which Medved also mentioned en passante. I'm sure the courtroom will be closed; and even if there is a TV feed, it will be court controlled, which the judge can order shut down if the defendants begin ranting. (Not that a raging Khalid Sheikh Mohammed screaming "God damn America!" would be a good recruiting tool to convert Americans to jihadist Islam anyway.)

The real danger is twofold:

It establishes a precedent that such terrorist attacks, launched from a foreign country by foreign nationals, with the aid and support of other foreign nations, are simply criminal acts that should be tried in civilian court, alongside carjacking and check kiting cases.

We must understand that such attacks are the future of warfare. We're not going to be subject to a missile barrage directly from Iran; when Iran attacks us in future, it will be through the agency of another KSM and Ramzi Binalshibh.

It carries the distinct risk that terrorist attorneys can "game the system" to get all five terrorist detainees acquitted... on grounds that demonstrate once again why we need to try these terrorists via military tribunals, not the civilian justice system (which was never set up to prosecute unlawful enemy combatants).

The defendants' attorneys, probably supplied by CAIR or some other terrorist-linked organization, can use a peculiar tactic to practically force an acquittal: They can claim that they cannot possibly defend against the charges without knowing exactly how they were found, how they were captured, what intelligence led them there, who were the sources for that intel (so they can be subpoenaed into court), what methods were used to collect it, and so forth. Thus, they will demand all such documents -- probably more than a million pages of heavily, heavily classified material -- during discovery.

Obviously, we cannot possibly hand that over to the defendants' attorneys. Even if the attorneys are Americans, how do we know we're not putting such vital intelligence data into the hands of another Lynne Stewart? Even the incompetocracy of Obama will be bright enough to realize it cannot release such intel... which will give the attorneys the perfect opening to demand all charges be dismissed.

In addition, they're sure to move to dismiss charges against KSM on the grounds that Mohammed was "tortured," i.e., waterboarded. This will give the federal courts yet another crack at formally declaring waterboarding to be torture -- which would make it much easier for Team Obama to prosecute our anti-terrorist interrogators... and once again blame George W. Bush for all the woes afflicting America.

At that point, all will be in the hands of a federal judge, then an appellate court panel, then the Supreme Court, where it will ultimately be decided by how Justice Anthony Kennedy feels that day. If he woke up grumpy, we could find all five of them (or perhaps just the most well-known terrorist, Khalid Sheikh Mohammed) acquitted, out on the streets, and quickly back in Iran or Pakistan or Indonesia, receiving a hero's welcome -- and returned once again to the terrorist fold.

(Medved did mention one other problem: That the civilian trial itself, no matter how carefully managed, would almost certainly compromise American intelligence gathering. But he presented it only as a quote from somebody else, at the very end of the hour.)

Honestly, the hundred-million dollar cost is the least of the perils to which such jackassery exposes us.

Queerly enough, the Justice Department also announced that other terrorists from the Guantanamo Bay Detention Facility will be tried -- by military tribunals!

But the administration will prosecute another set of high-profile detainees now being held at the military prison at Guantánamo Bay, Cuba -- Abd al-Rahim al-Nashiri, who is accused of planning the 2000 bombing of the Navy destroyer Cole in Yemen, and four other detainees -- before a military commission.

Why the difference? Because Nashiri attacked a military target, the U.S.S. Cole? But the 9/11 plotters attacked the Pentagon -- which is also a military target, I would reckon. Both KSM and and Nashiri were captured abroad, in Pakistan and the United Arab Emirates, respectively. Both are foreign nationals: KSM is a Kuwaiti, Nashiri is Saudi Arabian. Both planned their crimes abroad.

The only difference appears to be that Nashiri's target was an American ship sitting at anchor in Yemen, while Mohammed's targets were all in the United States; but this hardly seems such an important distinction that we couldn't have tried Mohammed and his five pals in a military tribunal as well, where we could much more securely control the circulation of any discovery documents that could compromise American national security.

I just don't understand what's so hard to understand about the insanity of this grandstanding move -- whose real purpose, I suspect, is to find yet another way to blame everything on Bush. But evidently, it's too subtle a point for Michael Medved to grasp. Yes, I agree, we spend too much federal and state money; we should significantly reduce spending and dramatically drop the tax rates.

October 2, 2009

Texas State Judge Overturns Texas State Constitution

Perhaps one of the legal beagles in the 'sphere can explain this to me, for I am only an egg in legal matters:

A Dallas judge ruled Thursday that Texas' ban on gay marriage is unconstitutional as she cleared the way for two gay men to divorce, the Dallas Morning News reported.

State District Judge Tena Callahan said the state’s bans on same-sex marriage violates the constitutional guarantee to equal protection under the law....

Attorney General Greg Abbott released a statement saying that he will appeal the ruling.

“The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman. Today's ruling purports to strike down that constitutional definition -- despite the fact that it was recently adopted by 75 percent of Texas voters,” he said.

Can Texas state judges strike down elements of the Texas state constitution on grounds that the constituiton is unconstitutional? I'm pretty sure that state judges in California cannot, but perhaps I'm mistaken even in that.

I was under the (perhaps naive) apprehension that state judges can strike down statutes for violating provisions of the state constitution; and of course a federal judge can strike down both a state statute and parts of a state constitution for violating the United States Constitution -- for example, a federal judge could strike down a clause of a state constitution, enacted by referendum (even by 75% of the voters), that restricted voting to whites.

But I didn't think state judges could strike down the state constitution, any more than a federal judge can simply rule a clause of the U.S. Constitution "unconstitutional." If a later clause contradicts an earlier one, then I have always assumed that the latter triumphs -- the most obvious case being the 12th Amendment in 1804, which directly contradicted parts of Article II, Section 1 of the Constitution, dealing with how we elect a president.

I have always been taught in school that the 12 Amendment changed the Constitution; but under the reasoning of State District Judge Tena Callahan, any federal judge could simply have ruled the 12th Amendment unconstitutional -- because it contradicted the section it was designed to alter! Similarly, any federal judge could have struck down the 13th Amendment (ending slavery), the 14th Amendment (due process and equal protection for all races), the 16th Amendment (income tax -- all right, maybe judges can kill off that one), or even the 21st Amendment repealing the 18th Amendment, thus reinstating alcohol prohibition across the land.

Clearly then, it seems to me, if federal judges cannot rule the U.S. Constitution unconstitutional, then state judges cannot rule the state constitution unconstitutional. Or am I simply ignorant of the niceties of law?

I suppose Callahan would argue that the state constitution violates the U.S. Constitution's 14th Amendment. But does a state judge have jurisdiction to consider that question? If so, then couldn't a state judge overrule a federal judge who may have already decided the opposite way? I thought the whole purpose of jurisdictional rules was to prevent such collisions in the first place.

And there is another point worth considering: The voters of Texas enacted a constitutional amendment to ban same-sex marriage; but if a single liberal state judge can simply wave her hands and consign that vote to the dustbin of history, then Texas no longer as a "republican form of government"... which, by the way, appears -- at least to my non-law-schooled eyes -- to be guaranteed to each state by Article IV, Section 4 of the United States Constitution.

At the very least, a "republican form of government" must ultimately be ordained and established by "we the people," not by judges; a judge should never be allowed to throw out pieces of her own constitution to suit her political ideology. That must be what is guaranteed by Article IV, section 4, for it to have any meaning or purpose whatsoever.

September 20, 2009

Obama Stands Behind "Prosecutors" - Well...

Injudicious Judiciary

Hatched by Dafydd

I cannot twitter my thumbs without noting the latest astonishment from the One (hat tip to DJR at Patterico's Pontifications). Here is Barack H. Obama on Deface the Nation, discussing Attorney General Eric Holder's decision to criminally investigate CIA agents who had the temerity to interrogate terrorist suspects about imminent, ongoing attacks:

He's got to make judgment in terms of what has occurred. My understanding is it's not a criminal investigation at this point. They are simply investigating what took place. And I appreciate the former CIA directors wanting to look after an institution that they helped to build. But I continue to believe that nobody's above the law. And I want to make sure that as President of the United States that I'm not asserting in some way that my decisions over rule the decisions of prosecutors who are there to uphold the law.

Thank goodness we finally have a president who is willing to uphold the law, no matter what: Fiat justitia ruat coelum!

June 5, 2009

Sonia "Banana Peel" Sotomayor Slips Again - and Again - and Again...

Confirmation Incongruities
, Injudicious Judiciary

Hatched by Dafydd

When the text was leaked of a 2001 speech by Judge Sonia Sotomayor, tabbed by President Barack H. Obama to be his first Supreme Court pick, and it was found to contain a passage that reeked of classic "reverse racism" the explanation by the White House was that it was simply a "poor choice of words," almost a slip of the tongue; she had said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Now the Congressional Quarterly discovers that Ms. Sotomayor "slips" so often, she could star in a Mack Sennett comedy:

Those speeches, released Thursday as part of Sotomayor's responses to the Senate Judiciary Committee's questionnaire, (to see Sotomayor's responses to the Senate Judiciary Committee click here and here) suggest her widely quoted 2001 speech in which she indicated a "wise Latina" judge might make a better decision was far from a single isolated instance.

I thought from the beginning that the defense was preposterous. The conclusion to her 2001 lecture wasn't a slip of the tongue or even just a "poor choice of words;" it was a long, extended rhetorical climax identifying the central thesis of her entire argument: that the gender and race of judge and litigants play, and should play, a huge role in how a judge decides a case. Her ancillary thesis was even worse: that whites and males are simply not as good at the job as people of "color" and females.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life....

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

But seven years earlier, in 1994, then District Judge Sotomayor delivered an address containing the following nearly identical passage:

Justice O’Connor has often been cited as saying that “a wise old man and a wise old woman reach the same conclusion in dueling cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes the line to Supreme Court Justice Coyle. I am not so sure that I agree with the statement. First, if Prof. Martha Minnow is correct, there can never be a universal definition of ‘wise.’ Second, I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion. [Sotomayor had yet to substitute "Latina" for "woman" to drag in racism as well as sexism.]

In addition, CQ Politics found Sotomayor boasting of the superiority of a "wise woman" judge over a (presumably more foolish) male judge, in at least four other lectures in between the 1994 and 2001 speeches:

One in 1999 to the New York State Women's Bar Association;

One in 1999 to Yale University;

Another to Yale in 2000;

And one to the CUNY School of Law (date not mentioned by CQ Politics).

Finally, they found a 2003 speech at Seton Hall University, two years after her Olmos Memorial Lecture, with this version:

I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion.

That makes seven times -- that we know of! -- that Sotomayor suggested women, and Latinas in particular, make better judges than whites and males.

I believe we have here what civil-rights law calls a "continuing pattern and practice" of making racist and sexist comments in major scripted, edited, and rehearsed speeches before august legal bodies. This renders risible the defense that Sotomayor was guilty only of a "poor choice of words." This isn't just a slip of the tongue, it's a window into a profoundly racially and sexually biased judicial mind.

When a person returns again and again over many years to a bizarre and controversial claim -- especially one that must be taken purely on faith, since all the evidence points against it -- then we must take seriously her absolute commitment to that position. And that means we cannot get away from the strong likelihood that her philosophical, ideological commitment to judging legal cases based upon race and gender, rather than purely upon the facts of the case and the relevant law, will recur; and that in some cases at least, it will determine her vote on the Supreme Court.

This also means that Newt Gingrich was premature to withdraw his charge of "racism" against Sotomayor in favor of the more wishy-washy claim that she only made a racist statement. One such statement can be explained away by implying it was out of character, she doesn't really think like that, she had a brain-tongue interchange malfunction, she just slipped.

But you don't slip on the same banana peel seven times unless, as with the Keystone Kops, the slip is entirely intentional: We must face the fact that Judge Sonia Sotomayor is, by any widely accepted definition of the words, both racist and sexist: She believes that one race is superior to another and that one gender is superior to the other.

Were a judicial nominee found to have endorsed pro-white, pro-male bias with similar enthusiastic repetition, his nomination would never make it out of the Senate J-Com. It shames the Democratic Party that in the age of Obama, a cheerfully racist and sexist judicial nominee is still a "slam-dunk" for confirmation... because she's the right kind of racist and sexist.

June 3, 2009

Serfing Towards Liberty?

The title refers, of course, to the immortal work by free-market economist Friedrich Hayek, the Road to Serfdom; but in this case, I'm not referring to the obvious economic servitude into which we seem to be slipping -- or slaloming.

I am instead talking about an even more fundamental shibboleth that determines whether a people are free citizens or merely subjects of the crown: whether their fundamental right to the means of self defense is protected or violated. In other words, whether they are or are not allowed to own a firearm.

Today a three-judge panel of the Seventh Circuit Court of Appeals decided to uphold Chicago's ban on handguns within the city limits. I believe the case was properly decided -- despite the fact that I believe Americans have a fundamental right to own (and even carry -- "keep and bear") arms, even within the great city of Chicago, a.k.a. Obamastan:

The unanimous three-judge panel ruled today that a U.S. Supreme Court decision last year, which recognized an individual right to bear arms under the U.S. Constitution’s Second Amendment, didn’t apply to states and municipalities.

“The Supreme Court has rebuffed requests to apply the second amendment to the states,” U.S. Circuit Judge Frank Easterbrook wrote, upholding lower court decisions last year to throw out suits against Chicago and its suburb of Oak Park, Illinois. [Easterbrook was appointed in 1985 by Ronald Reagan.]

Why was it properly decided? Because for more than a century, the Supreme Court has consistently ducked its opportunity to state unequivocally whether the protections of the Second Amendment to the United States Constitution apply only against action by the federal government, or whether it also protects our right to keep and bear arms from depredations by the states -- or their subdivisions, including the windy hog butcher to the world.

Even in the recent case of District of Columbia v. Heller, 554 U.S. ___ (2008), in which the Court for the first time held that the Second Amendment protected an individual's right to own a firearm, this larger issue was not settled. Justice Antonin Scalia wrote for the razor-thin majority:

In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense ... We affirm the judgment of the Court of Appeals.

However, as the title of the case suggests, this ban was enacted by a federal entity: the District of Columbia; therefore, the holding does not necessarily apply to a state or municipality. But that is exactly what the current case will decide.

I cannot imagine the Supreme Court refusing to take it, especially as a Ninth Circuit case, Nordyke v. King, ___ F.3d ___ (9th Cir. 2009), ruled the opposite way (that the Second Amendment does apply to state legislation). According to Wikipedia -- not the best of sources, considering its provenance, but it will have to do -- the Ninth Circus held:

The Circuit Court ruled that the Second Amendment was incorporated through the Fourteenth Amendment's Due Process Clause and applies against the states and local governments. In coming to that conclusion, the court found the right to keep and bear arms is "deeply rooted in this Nation’s history and tradition", a key factor under Duncan v. Louisiana for incorporation.

Therefore, we desperately need clarity: We need to know that our right to keep and bear arms is fundamental, and that it applies not only against federal bans but state bans as well. I believe the language of the amendment itself favors the side of liberty. Compare the language of the First Amendment to that of the Second:

First: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Second: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

If the Court can "incorporate" the First Amendment to the states, despite the fact that it explicitly mentions acts of Congress, then surely the Second Amendment (which mentions no such possible limitation) must logically be incorporated as well.

But only the United States Supreme Court can do so. If the same majority from Heller holds up under National Rifle Association of America v. City of Chicago, 08-4241, U.S. Court of Appeals for the Seventh Circuit (Chicago) -- and I believe it will -- then we will finally have what the Founding Fathers intended: "that every man be armed."

That may well turn out to be the greatest and most long-lasting achievement of the presidency of George W. Bush: Appointing John Roberts and Samuel Alito to the Court. Both joined the Scalia opinion, as did Clarence Thomas and Anthony Kennedy. While Roberts replaced Chief Justice William Rhenquist, who probably would have voted the same way in Heller, Alito replaced Justice Sandra Day O'Connor -- who I suspect would have either sided with the liberals, or at least would have demanded a toned down, wishy-washy decision. Alito cast a courageous vote for liberty instead.

So keep watching the skies; the first step is to see whether at least four justices will vote to accept certiorari.

May 26, 2009

Mystery Justice...?

Injudicious Judiciary

Hatched by Dafydd

On Hugh Hewitt's show just now, he was interviewing Mike Allen of Politico; Allen stated that in addition to the various women that Barack H. Obama considered (including the one he ultimately picked, Judge Sonia Sotomayor), there was a mystery candidate for the pick. All that Allen knew was that it was a "white male."

Hugh Hewitt kept trying to guess Interior Secretary Ken Salazar, based upon Hewitt's insistance that Hispanics should be considered "white." Regardless of the merits of that position, I think it highly unlikely that BO himself would consider Hispanics to be "white," so that's out.

As Allen toddled off into the radio sunset, Hewitt was left completely befuddled as to who that mystery candidate could be. But I think I've solved the enigma; it's clear and obvious to me... and he may well be the next pick Obama gets:

Hatch As Hatch Can: Venom of the Gay Left

In just four more hours, give or take, the California Supreme Court will release its decision and opinion on three consolodated cases demanding the invalidation of Proposition 8, the citizens initiative that overturned a decision by that same court mandating same-sex marriage in California on bogus "equal protection" grounds. The citizens initiative is one of the greatest tools of real grass-roots democracy, not liberal "astroturf," in America's most populous and richest state. (Which is headed towards bankruptcy and possible receivership; so it goes.)

In just four hours, we shall learn whether we still live in democracy with a government of the people, by the people, and for the people -- or whether we live in a tyranny with a regime of the activists, by the activists, and for the activists. I'm betting that even this court will shy from throwing a sacred Californian right of more than a century and a half standing into the dustbin of history, simply to satisfy a whim of policy preference, in a case that was originally decided by the slim and unconvincing majority of 4 to 3.

The gay Left says that if they do not get the "invalidation" ruling they want -- if the citizens of California are allowed to retain their self-evident right to write their own constitution -- then the radicals will go ape; there will be days of rage:

Gay rights advocates have scheduled marches throughout California and in several other states for Tuesday evening. Organizers say the gatherings will be celebratory if the court rules in their favor and angry if Proposition 8 is upheld.

Activists in the San Francisco Bay area, including several clergy members, said they planned to block the street outside the courthouse and to be arrested in a mass show of civil disobedience if the justices do not invalidate the measure.

"Words are not enough right now. We believe it's time to put our bodies on the line to show that separate is not equal," said Kip Williams, an activist with One Struggle, One Fight, a group that was launched in response to Proposition 8's passage.

I say, let them. Bring it on! Let the world see just how committed the American hard Left is to "outmoded" concepts such as democracy, liberty, and honesty. Let America see the liberal fascists for what they are: unAmerican, even anti-American. Apt pupils of Oogo Chavez and other Stalinists.

As the Emperor Claudius says in Claudius the God, the second half of I, Claudius, by Robert Graves, "Let all the poisons that lurk in the mud hatch out."

In sum, if the court has the audacity (chutzpah is the better word) to flush 159 years of the right of citizens initiative, over a stunningly recent, transitory, and bitterly partisan dispute, it will be the greatest outrage in the history of California jurisprudence... even for those who voted against Proposition 8: You cannot target your invalidations to those initiatives with whose policy you disagree -- without simultaneously invalidating it for all initiatives. I don't think even Los Angeles Mayor and likely next Democratic gubernatorial nominee, Antonio Villaraigosa, would go that far (though certainly San Francisco Mayor Gavin Newsom -- his most likely rival for the nomination -- would).

But if, as nearly everyone predicts, even most of the justices who voted to declare unconstitutional the state's perennial definition of marriage to apply only to male-female unions, nevertheless vote to uphold Proposition 8... then let us see the violent, adolescent Left rage and blow, smashing other people's property, assaulting their opponents, the police, and randomly selected bystanders. Let them show their Jerry Brown-shirts in public.

The medicine will be bitter, but its effect curative for our state's internal organs.

April 30, 2009

Everybody Expects the Spanish Inquisition

At the end of an AP story on the extraordinary lengths to which the administration of Barack H. Obama is going to urge, cajole, and even bribe our "allies" into accepting released detainees from the Guantanamo Bay Detention Facility -- so that the president can shut it down and bask in the warm glow of being patted on the head by Europe -- I stumbled across this arresting exchange:

In speaking to reporters Wednesday, [Attorney General Eric] Holder also said it is possible the United States could cooperate with a foreign court's investigation of Bush administration officials.

Holder spoke before the announcement that a Spanish magistrate had opened an investigation of Bush officials on harsh interrogation methods. Holder didn't rule out cooperating in such a probe.

"Obviously, we would look at any request that would come from a court in any country and see how and whether we should comply with it," Holder said. [Any country? Any country at all can open a "probe" of American officials, and Holder will seriously consider cooperating with it?]

"This is an administration that is determined to conduct itself by the rule of law and to the extent that we receive lawful requests from an appropriately created court, we would obviously respond to it," he said.

Oh yes, the "rule of law." But whose law? The rule of law in Spain forbids any interrogation of captured unlawful combatants and terrorists without them having an attorney present to object and demand classified intelligence; is that our new policy too? For that matter, the rule of law in Saudi Arabia demands that rape victims be flogged or even stoned to death. Will we "cooperate" on Saudi probes of such promiscuous women here in the United States?

The juxtaposition of Holder's offer of "cooperation" (complicity) and the hoped-for acceptance of Gitmo detainees strongly suggests that a grand bargain may be in the works: European countries may accept releasees in exchange for American recognition of the "universal jurisdiction" of individual courts of "human rights."

Does our looming cooperation imply that we might even look favorably upon a demand that we arrest and extradite named defendants to stand in the dock of such courts? Perhaps suspecting that he had given a bit too obvious a "tell," Holder seemed to retreat slightly (but only slightly):

Pressed on whether that meant the United States would cooperate with a foreign court prosecuting Bush administration officials, Holder said he was talking about evidentiary requests and would review any such request to see if the U.S. would comply.

But this is manifestly absurd: If the Attorney General of the United States once accepts the absurdity that a Spanish court and Spanish judge, Baltasar Garzón, sitting in Spain and operating under Spanish law, actually have jurisdiction over American officials making official policy decisions inside the United States about how American military and intelligence agents can interrogate detainees at an American Marine Corps base inside Cuba... then how can Holder later limit such jurisdiction to "evidentiary requests?"

If Garzón has legal authority to demand we hand over evidence, he also has legal authority to demand we hand over "war criminals," from American military personnel, to John Yoo, to Jay Bybee, to William Haynes, to Douglas Feith, to Alberto Gonzales, to Richard Myers, to Dick Cheney -- even to former President George W. Bush himself.

This is even more outrageous than the suggestion that we prosecute any of these individuals ourselves, or that we form a "truth commission" and haul them before it for public show trials. This is, in essence, outsourcing the prosecution of the previous administration to foreign courts. Call it "extraordinary judicion."

If we ever once accept that a European court -- and not even a recognized "international" one! -- has jurisdiction over actions committed by American officials here in the United States, and can prosecute them for "crimes" that are not even recognized here, then we have crossed a line from which we can never retreat: The United States will cease to be a sovereign power.

If Eric Holder and Barack Obama accept this idea, they will actually have brought about what used to be a paranoid fantasy among the John Birch Society and other lunatics -- "one-world government," run according to European, not American rules.

Even if we do not actually arrest and extradite suspects in a European crimes-against-humanity witch hunt, by acquiescing and even cooperating with such unconstitutional probes of American citizens, we could make it impossible for former Bush-administration officials ever to travel outside the United States: By accepting the jurisdiction of such "world courts" and blessing their proceedings, President Obama signals that he will stand by and do nothing if, say, Dick Cheney or George Bush is seized abroad and sent to some star-chamber tribunal for prosecution. (What would the former president's Secret Service contingent do -- shoot it out with Italian or German police?)

Note in this WaPo article that the administration has already cooperated with Garzón's kangaroo court, albeit with boatloads of plausible deniability:

In Madrid, a Spanish investigating magistrate announced Wednesday that he has opened a wide-ranging criminal investigation into what he called "a systemic plan of torture" at Guantanamo and other places where the U.S. government held terrorism suspects after the Sept. 11, 2001, attacks.

Judge Baltasar Garzón said his probe was based largely on complaints filed by four former prisoners at Guantanamo who were transferred to Spain. But in court papers, he also said his investigation was prompted by the release of secret U.S. legal opinions authorizing the CIA to subject terrorism suspects to waterboarding and other tactics.

Spain and some other European countries have adopted laws giving themselves authority to investigate torture, genocide and other human rights crimes anywhere in the world. Although it is rare for prosecutors to win such cases, those targeted can face arrest if they travel abroad.

It's possible that Obama, Holder, and everyone else involved in the bizarre decision to release highly classified memos detailing our interrogation techniques into the wide world, were so naive and feckless that they literally had no idea that a Spanish court (and others) would rake over such a treasure-trove of intel for anything they could use against the United States. But it's equally plausible that the administration knew exactly what would eventuate from the release... and they did it anyway, consciously and deliberately. It is, after all, a wonderful way to push forward the criminal prosecution of the former administration without Obama himself, or his deputies, getting blood on their own hands: Garzón is willing (eager!) to do it for them.

But they cannot escape their own complicity so easily. I strongly believe that even most rank and file liberals will rise up in disgust at the idea that any cockamamie court anywhere in the world can announce that it has awarded itself "authority to investigate torture, genocide and other human rights crimes anywhere in the world" -- then demand the arrest and extradition of Americans for actions committed in some third-party country (or in America itself!) that are not crimes here... but are crimes in the country housing the court.

Should we hand over American government officials to sharia courts in Iran, to be prosecuted for the "crime" of insulting Islam? Well, don't we want to improve relations with that country, hoping they wil promise, crescent their hearts, to stop building nuclear bombs? Or should we extradite a president for refusing to join in some EU-enforced policy to cut carbon use by 80%?

Just how far is the Obama administration willing to go to impose "change we can believe in" upon the American people. More to the point, just how far are we willing to let them go?

March 30, 2009

Despite the category above, this is actually not an example of media madness, but rather an unexpected gust of media sanity:

Two weeks ago, the American Bar Association’s eight-year exile ended. The Obama administration restored the group to the special status it had enjoyed since the Eisenhower years, and it will once again get early word about potential nominees to the federal bench.

The group says it is serious and diligent about evaluating candidates without regard to ideology. But there is reason to wonder whether Alberto R. Gonzales, who was White House counsel at the time, might have had a point when he told the group eight years ago that its help would not be needed.

The A.B.A. is, after all, a private trade association, not an arm of the government. It takes public and generally liberal positions on all sorts of divisive issues. And a series of studies suggest that candidates nominated by Democratic presidents fare better in the group’s ratings than those nominated by Republicans.

For its part, the American Bar Association has utterly refuted the malicious lie that they're biased to the left:

Kim J. Askew, the chairwoman of the association’s 15-member Standing Committee on the Federal Judiciary, which performs the evaluations, said her group is independent, hardworking and completely divorced from politics.

“We are an impartial group of lawyers that bring a peer review to the process,” Ms. Askew said. “We are all lawyers. We are officers of the court. We speak the language of the law. We do not consider politics.”

Well! Who could argue with that? It's not the A.B.A.'s fault that liberals tend to be capable and intelligent, whereas conservatives just happen to be incompetent and stupid.

Alas for the ABA, even the New York Times now admits that "a series of studies have found indications that liberal nominees do better in the process than conservative ones." No, really. The latest shocking, jaw-dropping assessment is from the University of Georgia and Emory University:

“Holding all other factors constant,” the study found, “those nominations submitted by a Democratic president were significantly more likely to receive higher A.B.A. ratings than nominations submitted by a Republican president.”

The differences matter, said Amy Steigerwalt, a political scientist at Georgia State and an author of the study, along with Richard L. Vining Jr, of the University of Georgia and Susan Navarro Smelcer of Emory.

“A nominee who has a higher A.B.A. rating is more likely to move through the process,” Professor Steigerwalt said. “When problems arise, a higher A.B.A. rating provides one piece of ammunition for the president and supporting senators about why a person should be confirmed to the federal bench.”

I won't say too much about this stunning conclusion, which surely breaks new ground that nobody has ever before trodden, because the dextrosphere is replete with actual lawyers, not sea-lawyers like me; I have a premonition that Power Line, Patterico's Pontifications, Instapundit, Beldar, the Volokh Conspiracy, et al will cover the topic rather thoroughly -- and probably have already done so in much greater depth than we; I haven't looked yet. (When I do check, I'll add links to the relevant posts of each of the blogs above... just because, unlike all those heartless conservatives out there, we care.)

Huh. As of this moment, none of the above blogs has so much as mentioned this Times article! Well, since I have little more to say, I think I'll post quickly -- and get a rare-to-vanishing Big Lizards scoop!

March 6, 2009

California Supreme Court Justices Will Decide Whether They or the People Get to Decide on Same-Sex Marriage

Court Decisions
, Injudicious Judiciary
, Matrimonial Madness

Hatched by Dafydd

The California Supreme Court (CSC) heard oral argument (no jokes, please) on the constitutionality of Proposition 8, the initiative constitutional amendment that overturned a 2008 CSC ruling that had itself overturned a previous initiative, 2000's Proposition 22, restricting marriage to a union between one man and one woman.

When voters enacted Proposition 22 eight years ago, they merely reaffirmed what had been the law in California ever since it was incorporated as a state in 1850; prior to 2008, same-sex marriage was never valid or allowed here.

There are three questions at issue in the current CSC case:

Was Proposition 8 legally placed upon the ballot as an initiative constitutional amendment?

Does it violate California's "separation of powers" constitutional doctrine?

If the amendment is upheld, how does that affect the 18,000+ same-sex marriages performed during the few months between the imposition of the CSC's decision and passage of Proposition 8?

The bits we don't care about

Issues (2) and (3) are ancillary to the main event. I have yet to see any discussion of how Proposition 8 supposedly violates separation of power. For heaven's sake, it simply defines marriage!

Is the argument that only the courts should get to do that, not the legislature or the citizenry, who write the laws the court supposedly interprets? I cannot imagine anyone taking that suggestion seriously. In any event, nobody seems to be writing about it, so I really can't comment.

And the third point above -- how Proposition 8 affects those same-sex couples who married in the brief window of opportunity -- is irrelevant to the state and country as a whole, however vital it may be to the individuals involved. If the CSC chooses to allow them to remain married -- which seems quite likely to me -- it's only out of compassion, not principle: The court simply feels sorry for the victims of its own malfeasance.

(It wouldn't violate the equal protection clause of the federal or state constitutions, because it's not based upon "immutable" characteristics, even if one believes sexual preference is immutable, but upon the actions of the individuals... no more than any privilege that sunsets. If a gay couple made it to the altar on time, they're in; if not, they're out. No jokes, please.)

Straight to the meat of the matter

Only one argument could strike down the proposition itself: whether it was properly put on the ballot as an initiative constitutional amendment in the first place. At issue is whether it's simply an amendment, which has been part of the initiative process since 1911, I believe; or whether it's sweeping enough to be considered a constitutional revision.

A revision would have required a 2/3rds vote in both houses of our state legislature (the State Assembly and the State Senate) to place it on the ballot, or else the same 2/3rds vote to call a state constitutional convention. Since neither of those were undertaken, if the CSC should rule that Proposition 8 created a "fundamental change to the [state] Constitution," then it would be struck down under question (1).

However, this is an awfully tough argument to make... given that all the amendment does is reinstate a previous initiative statute, Proposition 22, using exactly the same language. And all that statute did was reaffirm the status quo ante. How can reinstating the reaffirmation of the previous understanding possibly amount to a "constitutional revision?"

Mr. Peabody's Way-Back machine

On March 7th, 2000, the people of the state voted to inact an initiative statute comprising the following 14 words:

Only marriage between a man and a woman is valid or recognized in California.

300. (a) Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).

Proposition 22 was a precautionary measure against the possibility that California courts might attempt to cram same-sex marriage down our throats (no jokes, please) -- which, as it turns out, was remarkably prescient. So for eight years, Californians believed that the question of same-sex marriage was settled -- at least until supporters could muster enough votes to enact it via their own initiative; they tried once, but it was a disaster for the revisionists.

(The state legislature in California cannot vote to nullify a citizens initiative; they can only vote to place a legislative initiative on the ballot to overturn a citizens initiative... but we get to vote on that.)

We were rudely shaken awake on May 15th, 2008, when the California Supreme Court issued the ruling In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], overturning the law enacted by 2000's Proposition 22 and all other statutes restricting marriage and the recognition of marriage to one man and one woman.

Four of the seven justices voted to overturn the will of the people of the state of California and legalize same-sex marriage; the names in parentheses are the governors who appointed each justice and the year appointed:

Chief Justice Ronald M. George (Pete Wilson-R, 1991/1996)

Associate Justice Joyce L. Kennard (George Deukmejian-R, 1989)

Associate Justice Kathryn Werdegar (Pete Wilson-R, 1991)

Associate Justice Carlos R. Moreno (Gray Davis-D, 2001)

The other three justices voted to preserve traditional marriage:

Associate Justice Marvin Baxter (George Deukmejian-R, 1991)

Associate Justice Ming Chin (Pete Wilson-R, 1996)

Associate Justice Carol Corrigan (Arnold Schwarzenegger-R, 2005)

The ruling took effect at the beginning of July, I believe. Since supporters of traditional marriage knew that the case was in the works, and knew that the court would probably rule the way it eventually did, Proposition 8 was already in the works. The initiative "title" -- that is, the description that appears on the ballot itself -- offered by those who qualified it for the ballot was "Limit on Marriage."

It qualified for the November ballot... and then, Attorney General Jerry Brown (yes, the former "Governor Moonbeam"), in a burst of unaccustomed neutrality on a contentious issue, decided to change the title to remove possible bias in the original title. Brown's version? "Eliminates Right of Same-Sex Couples to Marry!"

Despite this bit of skulduggery, the initiative passed by a margin of 4.6%, 52.3 to 47.7. This was significantly less than Proposition 22 had passed by in 2000; but it was a November ballot (which tend to lean more to the left), it had the Brown title, and it was during the Obama sweep of California... a remarkable achievement showing the true strength of California's support for traditional marriage (Hispanic voters pushed it over the top). The lawsuits were immediately filed to overturn it, and those are the cases that were just argued today in the California Supreme Court.

Back to the future

It's generally impossible to say for sure how the court will rule; but in this case, the lawsuit seeking to overturn Proposition 8 looks to be on shaky grounds. The attorneys for the groups seeking to overturn Proposition 8 in the tit-for-tat (no jokes, please) battle came in for some rough treatment from some of the justices... including two justices who actually voted to impose same-sex marriage on the state in the first place, Chief Justice Ronald M. George and Associate Justice Joyce L. Kennard. From the New York Times story linked above:

The toughest and most opinionated questioning came from Justice Joyce L. Kennard, one of four justices who had ruled in May that same-sex marriage was legal.

She said on Thursday that by passing Proposition 8, the voters did not invalidate that entire decision, but in effect changed the meaning of the term “marriage.” It left intact, she said, the substantive rights that the court had granted same-sex couples.

Justice Kennard asked Shannon Minter, the legal director of the National Center for Lesbian Rights, an opponent of the measure, a question that resonated in the hearing.

“Is it still your view,” she said, “that the sky has fallen in as a result of Proposition 8, and that gays and lesbians are left with nothing?”

According to AP, Kennard went even farther and spoke even more directly to her thoughts on the case:

Justice Joyce Kennard said the court was being asked to decide between two rights - the right of the people to change the constitution and the right to marry.

"And what I'm picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people," she said.

While it's difficult to read the entrails of supreme court oral argument, this does not sound like a justice who leans towards throwing out the persistent vote of the people -- across three elections -- in favor of restoring traditional marriage to California.

I find it even more unlikely that one of the three dissenting justices, who do not believe the state constitution mandates same-sex marriage, would believe that the non-right of same-sex couples to marry would trump the enumerated right of the citizenry of this fair state to amend their own constitution. So if even one of the four justices in the majority of In Re Marriage Cases is persuaded that, notwithstanding the propriety or wisdom of banning same-sex marriage, the voters had the right to do so, then that's it... Proposition 8 stands.

All coming together (no jokes, please)

Yesterday, I was worried; but I'm extremely optimistic today. I feared the four who looked at a constitution that had never even contemplated any but traditional marriage in 153 years of statehood, and saw a constitutional mandate for same-sex marriage, would squint even harder and see that mandate as ineradicable by mere voters (for our own good, of course).

But it seems at least two of the four-justice majority in the earlier case recognize the enormity of the California Supreme Court nullifying a constitutional amendment enacted by the citizens to overturn a previous decision by the California Supreme Court: It smacks of tyranny of the European kind.

But if this amendment is upheld, as I believe it will be, then we in the Golden State have struck a magnificent blow for the right of we citizens of the several states to craft our own government, regardless of what our would-be robed masters command. And of course, we'll have preserved traditional marriage in America's largest state, to the great benefit of Western Civ.

January 29, 2009

Military Judge Shockingly Chooses to Follow Law, Not Obamic Decree

Injudicious Judiciary
, Military Machinations
, War Against Radical Islamism

Hatched by Dafydd

Military Judge Col. James Pohl decided to continue with the arraignment of Abd al Rahim al-Nashiri, accused of planning the bombing of the U.S.S. Cole in Yemen in 2000, an attack that killed seventeen American sailors and wounded fifty.

Nashiri, one of the Big Three who was waterboarded, is about to be arraigned by a military commission at the Guantanamo Bay Detention Facility. But President Barack H. Obama wants to personally "review" all 245 cases before allowing the George W. Bush policy of trying the detainees by military commissions to proceed. To that end, Obama signed an executive order calling for a delay of at least 120 days, while he decides whether to:

Close the facility, drop all charges against everybody, and release all the terrorist detainees in the United States;

Close the facility and rendite all the detainees to European allies -- who refuse to accept them;

Or close the facility and transfer all the detainees to ordinary federal courts -- which will promptly order the feds to produce all classified data from the war on the Iran/al-Qaeda axis in open court, thus conveying it all to al-Qaeda, Hezbollah, Hamas, Jemaah Islamiya, and every other militant Islamist terrorist organization in the world... and when even the Obama administration refuses to do this, the civilian courts will dismiss all charges against each detainee, releasing them into the United States.

But bizarrely, Judge Col. Pohl has ruled that his military commission will follow the law, which mandates an arraignment hearing by a certain date, rather than Commander in Chief's the hastily drafted delay:

The government, Pohl wrote, sought a delay because if cases went ahead, the administration's review could "render moot any proceedings conducted during the review"; "necessitate re-litigation of issues"; or "produce legal consequences affecting options available to the Administration after completion of the review."

"The Commission is unaware of how conducting an arraignment would preclude any option by the administration," said Pohl in a written opinion, which was obtained by The Post. "Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future."

How can mere law trump the pronunciamentos of the One We Have All Been Waiting For? What's the matter with that judge... didn't he get the memo?

The judges in 20 other military-commission cases that were set to proceed within the next 120 days have purportedly agreed to the postponement; Nashiri's is the only case where the judge denied the prosecutor's motion, at least so far. Now an ordinary reasonable person, one would imagine, would take the obvious compromise: accept the postponements of the other cases and order the prosecutor to proceed with the Nashiri case, as Col. Pohl ordered.

But the One is not to be thwarted or ignored. He is determined that Nashiri will not be arraigned during that period, and they're willing to use any means necessary to ensure that President Barack H. Obama, not Judge Col. James Pohl, wins this standoff:

Pentagon spokesman Geoff Morrell said at a briefing today that "this department will be in full compliance with the president's executive order. . . . And so while that executive order is in force and effect, trust me, there will be no proceedings continuing down at Gitmo with military commissions."

So where does that leave us? What means are necessary? I shall have to tell you what the Obama administration is considering, because you would not guess it in a thousand tries: They are looking into the prospect of withdrawing all charges against Nashiri; and then, 120 days from now, trying to refile them.

With the charges withdrawn, obviously Col. Pohl could not proceed. If they're able to refile the charges after the review period, Obama's advisors on military law evidently believe that the case can simply pick up again and proceed as normal. Or else maybe they would have to start all over again; but in any case, Obama will have asserted his authority and shown the military who is boss.

When military defense attorneys heard what was in the offing, some of them said they may force the administration to withdraw all charges against all detainees in Gitmo; I think what they are saying is that they would change their minds about stipulating to the postponement, thus forcing the hand of "the Pentagon official who approves charges and refers cases to trial."

That person is none other than Susan J. Crawford, of course, who came to our attention most recently when she flatly declared that at least one detainee in Guantanamo Bay had been "tortured;" she could not point to a single interrogation tactic that she would argue was torture itself; but she decided the concatenation of tactics bothered her delicate sensibilities:

You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

She decided not to file charges against the detainee (Mohamed Mani Ahmad al-Kahtani, the "twentieth 9/11 hijacker") in that case. Of course, many, many other prisoners were interrogated using "a combination of things" and could claim it had "a medical impact" on them; thus, they, too, can claim they were "tortured" according to the unique, subjective, virtually iconoclastic standard set by the Pentagon's own convening authority. Thus, she had already set us up for the kill even before Obama's order.

If Crawford now withdraws the charges against Nashiri, and if the military defense attorneys follow through on their threat, Crawford will be caught between the Devil and a deep, blue, hard place:

On the one hand, if the defense obects to the postponement, many military judges may follow Pohl's lead and side with the defendant's right to a speedy trial, thus denying the prosecutors' motions;

On the other hand, Obama has issued marching orders to his staff that "there will be no proceedings" until the review period is up, no matter what.

This may leave Ms. Crawford with no option but to withdraw all charges against each detainee. But on the third hand, that path is also fraught with peril: If the arraignment is begun and the defendant pleads not guilty before Crawford can navigate the Pentagon labyrinth and formally withdraw the charges, then at least some defense experts claim that jeopardy attaches... and the Obama administration might not be allowed to reinstate the charges later.

At this point, the Supreme Court rulings of Hamdan and Boumediene, so eagerly praised and even sought by liberal Democrats such as Barack H. Obama, may rear up and bite the country hard. In Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), the Court held that it retained jurisdiction to hear habeas corpus filings under the law that created the first set of military commissions, created under the authority of the Detainee Treatment Act of 2005; it also struck those commissions down. The case was decided 5-3, with Chief Justice John Roberts recusing himself, as he had been on the appellate-court panel whose decision was under review by the Supreme Court; but considering his vote on the Boumediene case below, I suspect this would otherwise have been a 5-4 decision.

Then just last year, in Boumediene v. Bush, 553 U.S. ___ (2008), the Court decided a straight-up habeas corpus case arising out of the second stab at military commissions, this time under the authority of the Military Commissions Act of 2006, enacted by the Republican-controlled Congress in October 2006 as a specific remedy for the problems the Court found with the first version of the commissions.

Justice Anthony Kennedy, writing for yet another 5-4 decision, held that the prisoner did indeed have habeas rights; and further, that such rights could not be stripped by subsequent legislation unless that legislation included a "substitute" method for determining guilt that included, well, all the protections offered by the Constituition to defendants in civilian trials.

Therefore, I doubt that the Court as presently constituted (it won't get better with Obama making future appointments) will allow Susan Crawford or Barack Obama or anyone else to keep Nashiri and all the other detainees in indefinite detention if they have withdrawn the charges and are prevented by double-jeopardy from refiling them later.

I suspect the only remedy available in such a case will be the immediate release of all such prisoners... right here in the United States, since no other nation will likely take them. We can't even deport them, because they would clearly face execution and likely torture in their host countries -- and that violates the same section of the Geneva Conventions that so impressed the justices in the majority on both cases: John Paul Stevens, Ruth Bader Ginsberg, David Souter, Stephen Bryer, and of course the swing vote, Anthony Kennedy.

Oh well; that the way the cookie bounces when conservatives stay home and refuse to vote for a Republican Congress and president.

The only solution here will be for President Obama to suck it up and just allow the Nashiri case to proceed, ordering Crawford not to withdraw the charges against that detainee. Without the precedent of dropping the charges for one, the other defense attorneys won't have a snowball to stand on trying to force the withdrawal of charges in other cases. If they refuse to agree to the continuance, then those cases will also simply move forward.

So what are the odds that Obama will accept defeat on this issue, with the mild humiliation and political hit it will bring, rather than jeopardize the centerpiece of the defense against the Iran/al-Qaeda axis -- the detention and trial of terrorist murderers and conspirators? I suppose it depends upon which weighs more heavily in the president's mind: the good of the country or his own personal authority.

December 2, 2008

In an unsurprising but still satisfying development in the latest sad chapter of criminalizing political differences, the bizarre and unbalanced floccillations of defeated Texas DA Juan Guerra have been rebuked and nullified:

A judge dismissed indictments against Vice President Dick Cheney and former Attorney General Alberto Gonzales on Monday and told the southern Texas prosecutor who brought the case to exercise caution as his term in office ends.

Willacy County District Attorney Juan Angel Guerra had accused Cheney and the other defendants of responsibility for prisoner abuse. The judge's order ended two weeks of sometimes-bizarre court proceedings.

Guerra is leaving office at the end of the month after soundly losing in his March primary election.

All of the indictments brought by Guerra's heavily manipulated grand jury were quashed; the reasons varied, but they all amounted to gross imbecility in pursuit of personal or partisan advantage.

Vice President Dick Cheney, former Attorney General Alberto Gonzales, The GEO Group (which privately operates federal prisons in Texas under U.S. government contracts), and state Sen. Eddie Lucio Jr. had been indicted for abusing prisoners or allowing them to be abused. Gonzales was singled out because he halted a federal investigation that was going nowhere; Cheney was added ostensibly because he invested in the Vanguard Group, which in turn invested in GEO (I believe we all know why he was really indicted). These bills were all dismissed because Guerra was replacing grand jurors with alternates (possibly more pliant) without properly substituting them... I suppose he simply told the actual jurors to shut up and had the alternates vote in their place.

In addition, two state judges, a state prosecutor, and a district clerk were indicted for investigating Guerra's earlier antics; these indictments were dismissed because it turned out that in addition to being the prosecutor, Guerra was also the alleged victim and the lone witness. Evidently, this constitutes some slight conflict of interest under Texas law.

So one attempt to criminalize policy differences has collapsed utterly, while another -- the indictment of former House Majority Leader Tom DeLay for money laundering, of all things -- limps to its nigh inevitable conclusion, not with the bang of a gavel but the whimper of a charge simply allowed to lapse.

Has anyone else noticed how the DeLay case dropped off the elite-media radar the moment it served its purpose of forcing him out of Congress? It's almost as if that were all they ever intended.

I just did a Google News search on "Tom DeLay" + "Ronnie Earle". The latter, you will recall, is the thoroughly discredited Travis County District Attorney; his vendetta against DeLay stems ultimately from the latter's successful drive to break the Democratic gerrymander that had kept the congressional delegation of Texas strongly Democratic -- even as the state had become very reliably Republican. Earle, a Democrat, was evidently furious that his party lost its electoral advantage, allowing the citizens of Texas actually to vote for the delegation they wanted, rather than the delegation that the Democrats allowed them.

The Google search turned up one (1) hit: An article by someone writing for the Texas Observor, "a nonpartisan watchdog [organization] that has filed ethics complaints against TRMPAC, Justice Alan Waldrop, and Bill Ceverha"... in other words, by a leftist house organ for the Austin-based Democratic Party in Texas. And even this piece of, ah, journalism concludes that the only way DeLay could be convicted is if (they hope, they hope!) Jack Abramoff drops some hitherto unrevealed bombshell. This is the Hail Mary of all judicial Hail Marys: Maybe DeLay committed some other crime of which we were previously unaware -- and he gets nailed for that! Hey, it could happen.

Criminalizing normal political differences has been a specialty of the Left for better than three decades; during the campaign, the Obama mob drummed up votes by talking about "war-crimes trials" and impeachments for all of the top Bush-administration officials... though they appear to have backed away from these threats since he was elected. Just as they believe that "the personal is political," they likewise believe that "the political is judicial": They think nothing of either prosecuting someone for taking the wrong side of a political dispute or else shopping around for a leftist judge to force some "progressive" policy onto the masses (unrestricted abortion, same-sex marriage, property-tax hikes, gun control) that the democratic branches of government find themselves unable to enact legitimately.

Logically, one would guess that having now captured both the legislative and executive branches of the federal government, the Democrats would be content to exert their power within the framework the Framers intended -- by voting for it. But I doubt it; I begin to believe the Left actually prefers enacting its agenda judicially (and punishing its political opponents with prison sentences): Judicial power is more easily controlled (it's not messy, like a vote), it has a longer reach, and best of all, it gives Progressives the joy of thwarting the will of the very polity they pretend to represent.

October 4, 2008

Courtesy Amnesia

Injudicious Judiciary
, Presidential Campaign Camp and Porkinstance

Hatched by Dafydd

Patterico is the latest to fulminate over Sarah Palin being unwilling (or unable) to recite for schoolmarm Katie Couric a Supreme Court decision she truly disagreed with -- one that was more recent than Roe v. Wade.

Palin now says she did have some cases in mind, but she wouldn't answer because she felt annoyed and belittled by the trivia that Couric was asking in place of intelligent questions. Patterico isn't buying that explanation; here is how our pal Pat ends his post:

Her explanation is not implausible as it relates to the question about what she reads.

But let’s be honest: on the question about Supreme Court cases, she either didn’t have an answer or froze. That’s fine; just admit it when asked about it. But she’s describing that answer of hers as “flippant” -- implying that she had a good answer but refused to give it out of annoyance. That makes no sense.

Again, I’m not trying to tear her down or make a stupid suggestion like calling for her to leave the ticket. I’m just saying: she didn’t fail to name Supreme Court cases out of annoyance. She seemingly didn’t know any, or froze. Either way, admit it and move on.

There is however a third and much more plausible explanation than either of those two; here is where I suspect her answer was headed, before she swallered it down (the blue text is where I diverge from what she actually said):

COURIC: What other Supreme Court decisions do you disagree with?

PALIN: Well, let's see. There's --of course --in the great history of America rulings there have been rulings, that's never going to be absolute consensus by every American. And there are--those issues, again, like Roe v. Wade where I believe are best held on a state level and addressed there. So you know--going through the history of America, there would be others but--

COURIC: Can you think of any?

PALIN: Oh yeah, you betcha... the one that pops into my mind first is when the Supreme Court wrongly upheld that dreadful McCain-Feingold law...

Heck, it would've topped my list! That would, perhaps, account for Gov. Palin "freezing up" while she tried to navigate her way out of that quagpatch.

August 12, 2008

The Expert Testifier on the Hot Tub

Injudicious Judiciary

Hatched by Dafydd

Here's a how d'ye do...

When I saw the tag-line in the Excite feed for this New York Times story on expert witnesses here and abroad, my immediate, naive response was negative. The tag was taken from this early graf in the story:

In most of the rest of the world, expert witnesses are selected by judges and are meant to be neutral and independent. Many foreign lawyers have long questioned the American practice of allowing the parties to present testimony from experts they have chosen and paid.

My instant impulse was to cry foul: In most of the rest of the world, expert witnesses are meant to reflect the opinion of the judge, which is why he chooses them in the first place... resulting in judges having even more power in Europe than they do here.

I do believe that's true; but on the other hand, I recalled that I, too, have railed against the American system of both sides hiring "their" expert witnesses, each of whom testifies in lockstep with that lawyer's theory of the case. As I calmed down and actually read the article, I found it reasonably balanced as such things go.

Here is the problem; whoever selects the expert witnesses at trial, whether civil or criminal, thus exerts tremendous influence over the outcome. George Orwell wrote, "Who controls the past controls the future; who controls the present controls the past." We could as easily say, Who controls the "expert" testimony controls the trial; who controls the selection controls the testimony.

The Times continues, putting the Euro-view of such testimony in a nuthouse:

The European judge who visits the United States experiences “something bordering on disbelief when he discovers that we extend the sphere of partisan control to the selection and preparation of experts,” John H. Langbein, a law professor at Yale, wrote in a classic article in The University of Chicago Law Review more than 20 years ago.

Partisan experts do appear in court in other common-law nations, including Canada, Singapore and New Zealand. But the United States amplifies their power by using juries in civil cases, a practice most of the common-law world has rejected.

First point:

I find it very illuminating (if true, and I have no reason to doubt) that "most of the common-law world has rejected" trial by jury in civil cases. I believe the reason is obvious: Euro-elites simply do not trust the judgment of their own citizens.

Clearly we sometimes get runaway juries, as with the cases against Big Cigarette or some of the loopy personal injury cases tried by such corrupt ambulance chasers as John Edwards. But I honestly think we're much more likely to get a runaway judge.

In the European system, a lawyer with a bad case doesn't need convince 12 jurors in a criminal case, or even some lesser amount in a civil trial, to go along with his insane theory; he only needs to persuade one, single feller in a black robe; the judge then selects the expert the lawyer suggests and refuses to call any experts suggested by the opposition.

This process is particularly easy if the corrupt lawyer cleverly went judge-shopping before the trial, making sure to get one who already leaned towards the lawyer's case:

Some years ago, we managed to get a strong, bipartisan majority of the voters in California to pass Proposition 209, Ward Connerly's citizen initiative that outlawed racial discrimination for or against any race in state employment, school admissions, and contracting decisions.

But it took only one federal district-court judge, Thelton Henderson, to rule that banning racial discrimination was racially disciminatory... a judge who was "shopped" by the anti-209 forces. I'm very skeptical that a jury of ordinary citizens would have been ideologically blinded enough to pull such a whopper.

Second point:

There is no obvious correlation between allowing a judge to select an expert witness and said witness being unbiased; it just shifts the bias from being blindingly obvious (a witness brought and paid for by one side) to having the illusion of nonpartisanship: an equally biased witness who is called by the judge himself.

As above, the whole idea founders on the fallacious presumption that the judge is actually a neutral arbiter with no bones in the dog.

When a John Edwards-like lawyer brings a fraudulent case, he invariably puts on the stand his own pet professional testifiers, all of whom are guaranteed to say that whatever the defendant did caused whatever injury the plaintiff suffered -- no matter how unconnected those two things are in the real world.

These very highly paid "experts" may in fact be widely considered jokes in the relevant field; but they are very, very good on the stand, always coming across as sincere, believable, competent, fatherly, and above all, certain and emphatic. Thus I agree that our system is imperfect.

But we're not comparing our system to perfection; we're comparing it to other systems we might plausibly adopt. With that in mind, how is the European system any better? At least in America, the defense can also put on expert witnesses -- even professional testifiers. They have a fighting chance; both sides get their at-bats.

In European and other foreign courts, judges, not lawyers, appoint experts; but a judge with a grudge can still appoint professional testifiers who actually know little to nothing about the issue (but whose testimony can be relied upon to parrot the judge's own opinon).

Under the European system, the other side isn't even allowed to put its own expert witnesses on the stand. ("Why do we need to allow the -- ugh -- other side to put its own lying exaggerators on the stand? It would only confuse matters.")

Either way, it's a dilemma, especially when the expert testimony is scientific in nature: Science is the least understood discipline among both juries and judges; people are far more likely to embrace some crazy theory about, say, power lines causing testicular cancer than they are to embrace the idea that electric blankets are inherently unsafe.

Most people have no experience with scientific concepts or the manner of scientific debate; they can easily be fooled by a "scientific expert" who is emphatic and absolutely certain. But real scientists are more often tentative and cautious, traits that jurors and judges alike frequently mistake for incompetence and shiftiness.

It drives me nuts, for example, when a judge allows testimony by an "expert" in the "scientific" field of parapsychology -- who then proceeds to testify that the plaintiff's ESP powers were "destroyed" by a CAT scan. ("And they never even warned me that I could lose my telekinetic abilities!")

(The galling part is that the plaintiff has no difficulty whatsoever demonstrating that she does not have any extrasensory perceptions right now... so she wins her case.)

I have longed for some way to keep absolute rubbish like that actual case -- or like John Edwards' testimony (unsworn, during his summation) that he psychically "heard" a brain-damaged baby demanding a caesarian section -- out of the courtroom. But how, without shifting to the Euro model?

One helpful step has been taken by several states: banning testimony that invokes "junk science" rejected by the mainstream scientific community.

The grounds for this are clear: If even the relevant scientists in the field don't believe that, e.g., CAT scans destroy ESP powers that don't exist anyway, then how can we expect a simple doctor, nurse, or clinic owner to think of "warning" a patient that it might? If you can't at least demonstrate that significant papers are being published in respected, refereed scientific journals supporting your outré "scientific" principle, you shouldn't be able to base your legal theory on that thoroughly rejected principle.

Still, this is a stopgap measure that doesn't get to the real problem: How is a jury to decide between a pair of dueling experts?

Amazingly, the Times article actually has something positive -- or at least interesting in its novelty -- to offer in place of the either-or of the expert witness... a system with the improbable name of "hot tubbing," and which can help a judge or jury discriminate between real experts and professional testifiers:

[Dr. Leonard Welsh] might have preferred a new way of hearing expert testimony that Australian lawyers call hot tubbing.

In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial -- discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues...

Australian judges have embraced hot tubbing. “You can feel the release of the tension which normally infects the evidence-gathering process,” Justice Peter McClellan of the Land and Environmental Court of New South Wales said in a speech on the practice. “Not confined to answering the question of the advocates,” he added, experts “are able to more effectively respond to the views of the other expert or experts.”

I don't know if this is the perfect solution, but I think something rather like "hot tubbing" would be better than what we have now:

We retain the right of opposing counsel to call their own experts;

We retain the right of trial by jury;

But instead of dueling experts testifying to completely opposite points, each being questioned only by attorneys who don't understand the point in the first place, the experts would have to interrogate and debate each other.

In my mind, truth, and the distinction between competence and nuttery, is much likelier to come out when the experts ask each other expert questions. It's the difference between a "Lincoln-Douglas" debate and a townhall meeting.

As a potential juror, I would much rather see a hot tub debate among experts -- or "concurrent evidence," if you prefer the stuffy label -- than either the system we have today or the model they prefer in France and Sweden.

June 18, 2008

The American Military: Threat... or Menace?

An illuminating argument has erupted between Democratic (de facto) nominee, Barack H. Obama, and Republican (de facto) nominee, John S. McCain. Simply put, Obama said in an interview that we should go back to the Bill Clinton policy of only going after terrorists in the courts, with writs and subpoenas, and not by force and violence; McCain said this was naive, that we had already tried this approach -- and it brought us 9/11; and Obama has ripped him for engaging in the "politics of fear."

Fear. This reminds me... in a BBS discussion I was just involved in, one very leftist participant sneered something (I don't rememeber the precise wording) to the effect that, "I'm not afraid of old men in turbans living in caves," and accused me of being a frightened, sniveling coward.

I asked him whether he had ever wondered why they're now living in caves, instead of Afghan training camps and Iraqi palaces... but he didn't respond, of course; having run rings around me logically, he had already moved on.

The answer should be clear with a little thought: Because military action by President George W. Bush drove them out of those camps and palaces, harried them up and down the land, until finally the only place they could find to hide -- was in a hole, whence they can no longer direct terrorist campaigns against the United States or our allies.

Keep this in mind as you read the following:

At issue were Obama's comments Monday in an interview with ABC News. Obama was asked how he could be sure the Bush administration's anti-terrorism policies are not crucial to protecting U.S. citizens.

Obama said the government can crack down on terrorists "within the constraints of our Constitution." He mentioned the indefinite detention of Guantanamo Bay detainees, contrasting their treatment with the prosecution of the 1993 World Trade Center bombings.

"And, you know, let's take the example of Guantanamo," Obama said. "What we know is that, in previous terrorist attacks - for example, the first attack against the World Trade Center - we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated.

"And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, 'Look, this is how the United States treats Muslims....

"We could have done the exact same thing, but done it in a way that was consistent with our laws," Obama said.

What conclusions can we draw from this unguarded admission by Sen. Obama?

Obama as much as admits that under his presidency, America will no longer go after terrorists militarily, but only through the courts.

He thinks that 1990s policy worked out much better than the current one. Evidently, he is completely ignorant of the numerous terrorist attacks on United States interests during that period... and he has even forgotten 9/11 itself.

(Or perhaps Obama thinks that 9/11 only happened because terrorists thought Bush was weak; had Algore been president, they would have been quaking in their boots so that they would never have attacked us! But that's a bit hard to swallow, considering how comfortable they had become with the Clinton policy -- which allowed for one major terrorist strike against the Great Satan every 2-3 years.)

As well, Obama has never even heard of any of the terrorist prosecutions conducted by the Bush administration -- including those of "dirty bomber" Jose Padilla, "failed shoe-bomber" Richard Reid, and "twentieth hijacker" Zacarias Moussaoui

The McCain campaign responded with a call in which McCain's senior foreign policy adviser Randy Schuenemann said, "Once again we have seen that Senator Obama is a perfect manifestation of a September 10th mindset. He brings the attitude, the failures of judgment, the weakness and the misunderstanding of the nature of our adversaries, and the dangers posed by them to a series of policy positions."

He added, "I have no doubt that we will hear in the course of the day that the Obama campaign will say we're practicing the, quote, politics of fear, and the reality is what Senator Obama's statement reflects last night is that he's advocating a policy of delusion that ignores what happened in the failed approach of the 1990's which allowed al Qaeda to thrive and prosper unmolested and that policy clearly made America less safe and more vulnerable."

For this attitude -- treating mass Islamist terrorism as war, not a criminal conspiracy -- Obama accuses McCain of just reiterating the "failed policies" of President Bush; failed presidential nominee John Kerry charges McCain with "defending a policy that is indefensible;" and Bush hater and presumed National Security Advisor under the Obama administration, Richard Clarke, called McCain's anti-terrorism policy the "big lie technique." Clarke thus directly compares John McCain to Josef Goebbels, Adolf Hitler's Minister for Public Enlightenment and Propaganda.

"These are the same guys who helped engineer the distraction of the war in Iraq at a time when we could have pinned down the people who actually committed 9/11," Obama said on his campaign plane.

Presumably, Obama was referring to how some of the perpetrators of the first World Trade Center bombing were prosecuted during the Clinton administration... but was not referring to, or even recalling, the utter failure ever to arrest anybody for any of the other mass Islamist terrorist attacks against the United States during the 1990s and into 2000.

It is true that some terrorists were prosecuted under Clinton; but in fact, Obama appears completely ignorant of the fact that far more terrorists have been criminally prosecuted -- in civilian courts -- during the Bush administration than during Clinton's tenure. The three high-profile cases mentioned above, Padilla, Reed, and Moussasoui, are just the tip of the ice cube.

In fact, according to a report by the Transactional Records Access Clearinghouse (TRAC) out of Syracuse University, there have been 579 terrorism prosecutions from September 11th, 2001, through August, 2006, or 116 per year... compared to only 115 in the previous five years under Bill Clinton, or 23 per year. The rate of criminal-court terrorist prosecutions more than quintupled under Bush from what it was under Clinton.

Sure, maybe Clinton didn't go after the terrorists by force of arms; but don't forget, he didn't prosecute them, either! Does Obama really want to go back to the that failed policy?

Even more important, there are far more failed terrorist prosecutions than there are successful ones. The TRAC study, released in 2006, found that only 1% of defendants actually convicted in terrorism cases received sentences of 20 years or longer; and more than half of convicted defendants received only time already served -- or no prison time at all.

And this doesn't even include terrorists who cannot be tried because, as an integral part of the attack, they killed themselves: Not a single person who carried out the actual hijackings on September 11th, 2001, was ever tried, because all 19 of them died in the bestial orgy of murder.

Why are criminal prosecutions so dicey? The point is that the government's most important task is to prevent terrorist attacks... not sit around, wait for them to happen, and then prosecute the perpetrators (those who happen to survive). Thus lawn-forcement officers try to arrest the terrorists before they commit the attack; and this necessarily weakens the legal case. From the International Herald Tribune:

"There are many flaws in the report," said Justice Department spokesman Bryan Sierra. "It is irresponsible to attempt to measure success in the war on terror without the necessary details about the government's strategy and tactics."

For instance, Sierra said, prison sentences are "not the proper measure of the success of the department's overall counterterrorism efforts. The primary goal ... is to detect, disrupt and deter terrorist activities."

Because prosecutors try to charge potential terrorists before they act, they often allege fraud, false statements or immigration violations that carry lesser penalties than the offenses that could be charged after an attack, Sierra said. This "allows us to engage the enemy earlier than if we waited for them to act first."

But wait; maybe it's just the Bush administration that incompetently handles terrorism cases. Perhaps the Clinton administration was just much better at it. But that's not what the evidence appears to show:

TRAC totaled the cases that prosecutors labeled as terrorism or antiterrorism no matter what charge was brought. It found only 14 prosecutions in fiscal 2000. That rose to 57 in fiscal 2001, which ended three weeks after the Sept. 11 attacks [and which included the last four months of the Clinton administration]. The figure then soared to 355 in fiscal 2002. But by fiscal 2005 it dropped to 46. And in the first eight months of fiscal 2006, through last May, there were only 19 such prosecutions.

Even in FY 2006, the year in which the IHT sniffs that the Bush administration failed to prosecute enough terrorist cases, there were more prosecutions in the first eight months than in all of FY 2000.

But surely such prosecutions are the best method of preventing terrorist attacks... right? Hardly. During the last administration, there were several major Islamist terrorist attacks carried out by al-Qaeda and affiliates: The first World Trade Center bombing in 1993; the Khobar Towers bombing in 1996; the U.S. embassy bombings in Kenya and Tanzania in 1998; and the USS Cole bombing in 2000. In addition, you have to count 9/11 itself in 2001, because the Bush administration had not yet shifted from the Clinton-era "law enforcement" response to terrorism to the more robust policy of military interdiction and of law enforcement driven by intelligence gathering (such collaborations were forbidden by "Gorelick's Wall" until after 9/11).

After we did shift strategy, however, from December 2001 to today, there have been exactly zero successful Islamist terrorist attacks on us, except for attacks on our military in Afghanistan and Iraq as part of "asymmetrical combat operations" in those wars. From five major successful attacks by radical Islamist terrorists to none at all... that's a pretty good argument for the McCain approach, rather than the Obama approach.

And here is yet another: Yesterday in the U.K., the Special Immigration Appeals Commission ordered the Ministry of Justice to release on bail Abu Qatada, the highest ranking al-Qaeda affiliate they currently hold -- and a direct clerical counsel to Osama bin Laden himself.

So why are they releasing him? As near as I can make out, Qatada was being held on an immigration charge:

He is a Jordanian, and he was tried and convicted in absentia (twice!) in a Jordanian court for "conspiracy to carry out bomb attacks on two hotels in Amman in 1998, and providing finance and advice for a series of bomb attacks in Jordan planned to coincide with the Millennium."

But because he had these two convictions pending, which presumably could result in a sentence of death in Jordan, he could not be deported back to that country... because the U.K. refuses to recognize the validity of executions.

Therefore, reasoned the Special Immigration Appeals Commission, since he could not be deported, that meant the entire immigration case against him collapsed.

Therefore, he could not be held indefinitely without a criminal charge.

But the moment Qatada was charged with a regular civilian crime, the judges told the Ministry that they had to offer Abu Qatada bail;

It seems that in the U.K., this is an even more fundamental right than here. For one difference, we do not set bail for a prisoner deemed a flight risk; and evidently, the U.K. does.

Therefore, Qatada walks tomorrow. I wonder how long it will be before he is spirited out the U.K. by his al-Qaeda friends? But in any event, that is another reason why America is much better off treating mortal combat as "warfare," rather than a mere "crime" that needs to be investigated, and a flurry of papers that need to fly out in response to the next 9/11.

Those ghastly Tribunals...

These commenters [on Beldar Blog] seem to be unaware that, in direct response to earlier suggestions from the Supreme Court, a bipartisan majority of Congress carefully crafted a system that balanced national security concerns against the need to provide fair, just hearings for these detainees. By no means did Congress rubber-stamp what the Bush-43 Administration suggested.

The resulting system closely resembled, and explicitly drew heavily from, the legal system already in place via the Uniform Code of Military Justice for our own servicemen and -women who are accused of crimes. The resulting statutes thus represented the will of the people as expressed through both of the elected branches of government, which -- not coincidentally -- are also the two branches of government given substantial responsibility by the Constitution with the declaring and conduct of war.

Beldar refers to the Military Commissions Act of 2006, which created a set of procedures for a fair hearing for each and every detainee in the Guantanamo Bay military prison; it provided for legal representation for every detainee, rules of evidence, and a standard of probable cause to hold the captured enemy combatant "for the duration."

That is what five justices of the Supreme Court -- the four ultra-liberals plus Anthony Kennedy -- ruled "unconstitutional"... for foreign terrorists captured on foreign soil during a war, that is. But the same procedure is evidently perfectly constitutional when it's merely our own soldiers, airmen, seamen, and Marines on trial.

Goose, no gander...

Why are the Democrats uniformly cheering and lauding this decision, which seemingly ties the hands of the president and Congress for all time... even during a Democratic administration? Don't they expect to win big in November?

Yes they do, but...

Democrats applaud Boumediene because they know that only Republican administrations will obey it. Democratic presidents will completely ignore the ruling -- and they'll get away with it using the argument attributed to Andrew Jackson: "The Court has made its decision; now let's see them enforce it."

I cannot imagine any other reason -- except a case of Bush Derangement Syndrome so overpowering that it even drives out their own self-interest -- why Democrats would be so united in applauding this wretched opinion, which is likely the worst Supreme Court decision of my lifetime.

Two, four, six, eight...

Finally, I wonder why Republicans and John McCain haven't jumped on a slogan as simple and obvious as this for the election:

Republicans say that foreign terrorists attacking our country have no rights. Democrats say they have more rights than American servicemen. You choose.

I think that succinctly sums up the difference between the two parties... don't you?

June 13, 2008

Lizards Propose U.S. Constitutional Amendment

I rarely support proposed federal constitutional amendments; most offer permanent solutions to transient problems, threatening to lock in today's compromise for all time. For exampe, I reluctantly supported the Equal Rights Amendment -- twenty years ago, as a young man; but I don't think I would today, because it is clear that the problems it was designed to resolve have been handled legislatively, and there is no chance that could ever be reversed by judicial fiat.

But yesterday's Supreme Court ruling in Boumediene v. Bush was so devastating in its effects, so unprecedented in its legal claims, and frankly, so mad in its hubris -- an undisguised power grab by the unelected branch of government over the warmaking power of the democratic branches -- that I honestly believe we must pass a constitutional amendment to undo the damage and restore sanity.

I am under no illusions that such an amendment will pass easily or quickly; but as a secondary point, if we word it carefully enough and limit it to just what we need, it will also serve as a potent campaign weapon against Democrats who refuse to support it.

Finally, it deals with an issue of such fundamental importance that it does indeed rise to the level of the Constitution of the United States... for it defines just who is covered by said Constitution.

Here is our first crack at wording such an amendment:

This Constitution extends to all persons subject to the actual sovereign authority of the United States of America.

Our objects are threefold:

The amendment must be brief and precise. The more complex an amendment is, the more leeway anti-American justices and judges have to find loopholes. This amendment is but eighteen words and doesn't even need an "enactment" clause, since all it does is define to whom the rest of the Constitution applies. Think how the framers inadvertently helped gun prohibitionists by prepending "a well regulated militia being necessary to the security of a free state" to the Second Amendment.

The amendment must be clear to anyone who reads it, even non-lawyers (such as myself). We only have a hope of passing this if every man and woman, and even children above the age of thirteen or fourteen, understands exactly what it would do -- and why it's vital.

The amendment must be clean. It cannot include hidden or unanticipated wiles; we cannot give the Democrats (and RINOs) any excuse or justification to hide behind as they vote against this amendment. We want a clean choice: Either you believe our Constitution extends protection to aliens living abroad -- or you believe it extends only to the soverign territory of the United States.

For an example of the last, it cannot say "extends to all citizens subject to," because that would mean that all immigrants, even legal immigrants, suddenly lose all constitutional protections. In fact, it cannot even say "all legal residents subject to;" although many people wish they could strip illegal aliens of all constitutional rights (no protection from search and seizure, no requirement to give them a fair trial before imprisoning them for crimes, etc.), such a provision would make it easy for Democrats (and many Republicans) to defeat it.

Worse, it would flip the political effect around to destroy any chance of the GOP picking up seats and trying again in the 111th Congress: Such underhanded and dirty pool would anger even many Americans who oppose legalizing illegal immigrants, and the growing Hispanic vote would become like the black vote: a Democratic plantation.

As I say over and over, I am not a lawyer. This wording may well run afoul of elements of constitutional law. However, a lot of lawyers read Big Lizards, and I especially invite them to comment on the wording and how it could be improved.

After a few days and any corrections that seem better to me, I plan to send this to every Republican senator and congressman, urging them to make it a part of the national GOP campaign for the November elections. I believe such an amendment, coupled with the campaign they're already running to "drill here, drill now, pay less," will give us an unprecedented and unexpected opportunity to reverse the trend of the 2006 elections and actually pick up seats -- perhaps even taking back the Congress. That is tough but doable, if we can change the climate to one that is just as toxic to Democrats, who are suddenly seen as anti-American, as it currently is to Republicans.

For God's sake, for a million practical, legal, and sovereignty reasons, we cannot let this insanity stand. Five people on that Court need a swift and strong kick in the robes from the American people.

June 12, 2008

Supreme Court Gitmo Case: Sen. Joe Biden Is Right!

Constitutional Maunderings
, Court Decisions
, Injudicious Judiciary

Hatched by Dafydd

(We pause a moment while readers locate their jaws, rolling around somewhere on the floor, before continuing...)

Yes, I completely agree with Sen. Joe Biden's (D-DE, 75%) commentary on the Boumediene v. Bush Supreme Court decision released today... actually, with part of Biden's commentary. Well, to be perfectly blunt, I agree 100% with the last two sentences of Biden's statement:

As we look forward, we must take stock that this decision was five Justices to four. If one more Justice in the mold of Chief Justice Roberts or Justice Alito is appointed to the Court, decisions such as this will likely come out the other way.”

Yes sir. One more justice. Contrarywise, if one more justice in the mold of Justices Ruth Bader Ginsburg or Stephen Breyer is appointed to the Court, decisions such as this will likely become commonplace.

Many conservatives wish someone less friendly to illegal immigrants had won the GOP nomination. They could never quite settle on who they wanted; nevertheless, many now threaten to sit out the election, forcing an Obama victory, in order to teach the rest of us a good, hard lesson -- bow to their wishes, even when they themselves can't decide what those wishes are.

I would like to address those conservatives directly: You have now seen what radical judges can do and how devastating that can be to the national security of the United States. You may very well see, in the next administration -- particularly if those "sitting out" get their way -- the federal courts order the release of top al-Qaeda terrorists back into the wild.

Five justices voted in the majority in Boumediene:

John Paul Stevens is 88 years old; he was nominated by the unelected and very liberal Republican Gerald R. Ford. I cannot prove this, but I strongly suspect that Ford, like other liberals (Republicans and Democrats), believed in an activist judiciary, given his generally liberal politics;

Ruth Bader Ginsburg is 75; she was nominated by President Bill Clinton;

Anthony Kennedy is 71; is the only justice in the majority nominated by a conservative president, Ronald Reagan;

Stephen Breyer is 69; he was nominated by President Bill Clinton;

David Souter is 68; he was nominated by liberal Republican George H.W. Bush.

Note I listed them in order of age. Think about this: Nobody lives (or serves) forever; and it's hardly a revelation that the older a justice is, the more likely he or she is to leave the Court -- vertically or horizontally -- through simple old age.

All five justices in the majority are senior citizens; three are in their seventies or eighties (Stevens is getting close to his nineties). By contrast, three of the four dissenters is in his fifties; only Antonin Scalia is in his seventies. But there is a very good chance that the next president will replace at least one, probably two, maybe even three justices... mostly liberal judicial activists. It will be an extraordinary opportunity to shape the Court for literally decades to come... and one conservatives will only get if John McCain beats Barack H. Obama in the elections on November 4th.

Nominating Kennedy is probably the worst decision Reagan made while in office -- definitely worse than Iran-Contra. Nevertheless, Kennedy is a "swing" vote on the Court, often siding with the conservative side. Sadly, he chose this case as one where he would swing back to the left. Kennedy is a classic case of a justice who "grew" (became more liberal) in office.

Not so David Souter, who was known to be quite liberal -- and a judicial activist -- even before his appointment; he was championed by the liberal New Hampshire Republican Sen. Warren Rudman and the even more liberal former New Hampshire Sen. John Sununu, who had become George H.W. Bush's Chief of Staff. Bush-41 might have been rolled, but it wouldn't have taken much rolling.

By contrast, those dissenting justices who voted against the Boumediene decision were (also in order of age):

Antonin Scalia is 72; he was nominated to the Court by Ronald Reagan;

Clarence Thomas is 59; he was nominated to the Court by George H.W. Bush (somewhat redeeming Bush-41's appointment of David Souter);

Samuel Alito is 58; he was nominated by George W. Bush (Bush-43);

John Roberts is 53; he was nominated to the bench by George W. Bush (Bush-43).

All four of these justices were nominated by Republicans; by contrast, both justices nominated by Democrat Clinton voted to give -- not "recognize," but give for the very first time in our history -- habeas corpus rights to enemy combatants captured and detained abroad.

Three of the four dissenters were nominated by presidents who openly and proudly supported judicial restraint. In very stark contrast, three of the five in the majority were nominated by presidents who actively supported judicial activism; one was nominated by a president who appears to have had no opinion on judicial activism vs. restraint; and only one was nominated by a president who supported judicial restraint (and that one, Anthony Kennedy, is the least ideologically liberal of the majority).

Clearly, what matters most to the direction taken by the Supreme Court is which president nominates the justices: Liberal presidents invariably nominate judicial activists to the bench; conservative presidents generally nominate judicial conservatives to the bench. But some conservatives still want to sit out this election -- to teach us a good, hard lesson.

Finally, of the two nominees for president today, we have this:

John McCain has pledged to nominate justices in the mold of John Roberts and Samuel Alito and has praised Clarence Thomas and Antonin Scalia. McCain has condemned the Boumediene decision:

These are unlawful combatants, they’re not American citizens, and I think that we should pay attention to Justice Roberts’s [dissenting] opinion in this decision. But it is a decision the Supreme Court had made, and now we need to move forward.

In extremely stark contrast, Barack H. Obama has pledged to nominate justices in the mold of Ruth Bader Ginsburg and Stephen Breyer -- the two most ideological, doctrinaire leftist, and judicially activist justices on the Court. In addition, Obama has widely and categorically praised the Boumediene decision today (same NYT article linked above):

Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus.

There is virtually no question but that McCain would nominate justices who would have ruled against Boumediene, while Obama would nominate justices who would rule for the terrorist detainees having full-blown trials in civilian criminal courts... with the full panoply of rights previously extended only to persons residing under American sovereignty.

What does this mean in practice?

Barack H. Obama wants every enemy combatant captured on the battlefield to be allowed to have an attorney of his choosing, even if he chooses an al-Qaeda lawyer... or else the enemy combatant must immediately be released upon the decision of the first District Court judge (or the next, or the next) who hears his habeas petition.

Obama wants every enemy combatant captured on the battlefield to have the right to demand all intelligence information, no matter how heavily classified, be handed over to his attorneys... or else the enemy combatant must immediately be released.

Obama wants the terrorist attorneys of every enemy combatant captured on the battlefield to have the right to endlessly subpoena military commanders up to and including Gen. David Petraeus, commander of CENTCOM, forcing these commanders to drop everything and return to America to testify in the habeas hearing... or else the enemy combatant must immediately be released.

Obama wants endless appeals and reappeals of any decision that goes against any enemy combatant captured on the battlefield... appeals over and over of the same issues, whenever the terrorist attorney can find yet another friendly federal judge. (Think that won't happen? Think of what happens whenever a death-row murderer gets close to his execution date. Imagine mass candlelight vigils led by prominent Democratic politicians demanding the release of Khalid Sheikh Mohammed, Ramzi Binalshibh, and Abu Zubaydah.)

And if Obama is elected president, with this Congress or the next likely one, he will have the power to get everything he wants.

But some conservatives still want to sit out this election. To teach us a good, hard lesson: Bow to our wishes, or like Samson, we will pull the temple of America down upon all our heads.

I beseech you, in the bowels of Christ, think it possible you may be mistaken.

-- Oliver Cromwell, Letter to the General Assembly of the Church of Scotland, 1650

If one more Justice in the mold of Chief Justice Roberts or Justice Alito is appointed to the Court, decisions such as this will likely come out the other way.

Today, John McCain gave his new stump speech on the judiciary and his own judicial philosophy. You don't need to be a judge or even a lawyer to have a judicial philosophy; I have one, and I'm not a lawyer... I do sometimes play sea-lawyer on the internet, but that doesn't really count.

Being blessed with towering ignorance of the law, I really have little to say about this issue. (Little of value, I mean; that certainly does not imply I'll shut up in future.) Instead, I turn the floor over to my friend Paul Mirengoff at Power Line, who is a lawyer -- or at least claims to be one -- and is a conservative. Or at least claims to be one.

Paul says that McCain's speech on his future judicial appointments was "very strong, very sound." Since I know that many of our readers are lawyers, real ones; and as I've heard that lawyers sometimes disagree with and don't trust the judgment of one another; I have continued the tradition of quoting extensively from McCain's own speech in the "slither on;" in this case, "extensively" means the entire speech. Y'all can pick nits to the utter fulfillment of those greedy, little lumps of coal you people call hearts.

Paul Mirengoff begins, "Senator McCain delivered an address on judicial philosophy at Wake Forest University today. It's very strong, very sound speech." Continuing in that vein, after a long, lazy quotation from McCain's speech, Paul concludes the following (long, lazy quotation from Mirengoff's blogpost follows):

Should McCain's speech satisfy conservatives? Not in and of itself; actions speak louder than words. However, McCain's actions over the years have mostly been consistent with these words. For example, he was a solid supporter of Roberts, Alito, and nearly all of the court of appeals nominees that Democrats attempted to block. His decision to join the Gang of 14 seems to have been a tactical one -- he thought it would maximize success in confirming worthy nominees. One can disagree with that judgment, as I do, without seeing it as inconsistent with a sound judicial philosophy....

For my part, I don't expect that McCain will be perfect on these issues; indeed, even Reagan at times came up short. But I certainly agree that McCain understands most of the basics and that, in all likelihood, his approach to the judiciary will generally be sound.

(But notice, I'm marginally less lazy -- because I made judicious use of the elipsis to spare you the necessity of reading every word, even those that are less dispositive than the ones I chose to quote. Just like Prof. Higgens, "[I have] the milk of human kindness by the quart in every vein." Consider yourself blessed to have found this site; think how drab, listless, and unexciting was your life before discovering Big Lizards!)

In any event, as the mantra goes, read the whole thing. I mean the Power Line whole thing. Oh heck, both whole things; and read this whole thing, too. You'll be as happy as a doornail that you did.

U.S. Senator John McCain will deliver the following remarks as prepared for delivery at Wake Forest University, in Winston-Salem, NC, today at 10:00 a.m. EDT:

Thank you, Ted, and thank you all very much. Dr. Hatch, I'm grateful for your invitation to this great university. And Senator Richard Burr, thank you for that warm welcome to North Carolina and to Wait Chapel. I'm honored to be here, and I brought along a friend. I'm sure you'll recognize him -- my pal, Senator FredThompson of Tennessee.

We appreciate the hospitality of the students and faculty of Wake ForestUniversity, and especially during exams. I know exam week involves some tough moments, likewhen you're up at 3:00 a.m. and have to choose between studying or watching one of Fred's old movies. Most of the students here look confident and ready, so you need no advice from me as final exams draw near. But for those of you who might be feeling a slight sense of panic coming on, all I can say is that a few bad grades don't have to be end of the road -- so just give it your best and move on. An undistinguished academic record can be overcome in life, or at least that is the hope that has long sustained me.

Your kind invitation brings me here as a candidate for president of the United States, and anyone in that pursuit has plenty of promises to make and to keep. When it's all over, however, the next president will be compelled to make just one promise, in the same words that 42 others have spoken when the moment arrived. The framers of our Constitution had a knack for coming right to the point, and it shows in the 35-word oath that ends with a pledge to preserve, protect, and defend the Constitution itself.

This is what we require and expect of every president, no matter what the agenda or loyalties of party. All the powers of the American presidency must serve the Constitution, and thereby protect the people and their liberties. For the chief executive or any other constitutional officer, the duties and boundaries of the Constitution are not just a set of helpful suggestions. They are not just guidelines, to be observed when it's convenient and loosely interpreted when it isn't. The clear powers defined by our Constitution, and the clear limits of power, lose nothing of their relevance with time, because the dangers they guard against are found in every time.

In America, the constitutional restraint on power is as fundamental as the exercise of power, and often more so. Yet the framers knew that these restraints would not always be observed. They were idealists, but they were worldly men as well, and they knew that abuses of power would arise and need to be firmly checked. Their design for democracy was drawn from their experience with tyranny. A suspicion of power is ingrained in both the letter and spirit of the American Constitution.

In the end, of course, their grand solution was to allocate federal power three ways, reserving all other powers and rights to the states and to the people themselves. The executive, legislative, and judicial branches are often wary of one another's excesses, and they should be. They seek to keep each other within bounds, and they are supposed to. And though you wouldn't always know it from watching the day-to-day affairs of modern Washington, the framers knew exactly what they were doing, and the system of checks and balances rarely disappoints.

There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate, and confirm better judges.

Quite rightly, the proper role of the judiciary has become one of the defining issues of this presidential election. It will fall to the next president to nominate hundreds of qualified men and women to the federal courts, and the choices we make will reach far into the future. My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power. We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits. And the people of America -- voters in both parties whose wishes and convictions are so often disregarded by unelected judges -- are entitled to know what those differences are.

Federal courts are charged with applying the Constitution and laws of our country to each case at hand. There is great honor in this responsibility, and honor is the first thing to go when courts abuse their power. The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it. A court is hardly competent to check the abuses of other branches of government when it cannot even control itself.

One Justice of the Court remarked in a recent opinion that he was basing a conclusion on "my own experience," even though that conclusion found no support in the Constitution, or in applicable statutes, or in the record of the case in front of him. Such candor from the bench is rare and even commendable. But it was not exactly news that the Court had taken to setting aside the facts and the Constitution in its review of cases, and especially in politically charged cases. Often, political causes are brought before the courts that could not succeed by democratic means, and some federal judges are eager to oblige. Politicians sometimes contribute to the problem as well, abdicating responsibility and letting the courts make the tough decisions for them. One abuse of judicial authority inspires more. One act of raw judicial power invites others. And the result, over many years, has been a series of judicial opinions and edicts w andering farther and farther from the clear meanings of the Constitution, and from the clear limits of judicial power that the Constitution defines.

Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the State of Missouri. As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and "evolving standards of decency." These meditations were in the tradition of "penumbras," "emanations," and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning. The effect of that ruling in the Missouri case was familiar too. When it finally came to the point, the result was to reduce the penalty, disregard our Constitution, and brush off the standards of the people themselves and their elected representatives.

The year 2005 also brought the case of Susette Kelo before the Supreme Court. Here was a woman whose home was taken from her because the local government and a few big corporations had designs of their own on the land, and she was getting in the way. There is hardly a clearer principle in all the Constitution than the right of private property. There is a very clear standard in the Constitution requiring not only just compensation in the use of eminent domain, but also that private property may be taken only for "public use." But apparently that standard has been "evolving" too. In the hands of a narrow majority of the court, even the basic right of property doesn't mean what we all thought it meant since the founding of America. A local government seized the private property of an American citizen. It gave that property away to a private developer. And this power play actually got the constitutional "thumbs-up" from five m embers of the Supreme Court.

Then there was the case of the man in California who filed a suit against the entire United States Congress, which I guess made me a defendant too. This man insisted that the words "Under God" in the Pledge of Allegiance violated his rights under the establishment clause of the First Amendment. The Ninth Circuit court agreed, as it usually does when litigious people seek to rid our country of any trace of religious devotion. With an air of finality, the court declared that any further references to the Almighty in our Pledge were -- and I quote -- "impermissible." And it was so ordered -- generations of pious, unoffending custom supposedly overturned by one decree out of a courtroom in San Francisco. And now it turns out the same litigant is back for more in the Ninth Circuit, this time demanding that the words "In God We Trust" be forever removed from our currency. I have a feeling this fellow will get wind of my remarks today -- and we're all in for trouble when he hears that we met in a chapel.

In the shorthand of constitutional discourse, these abuses by the courts fall under the heading of "judicial activism." But real activism in our country is democratic. Real activists seek to make their case democratically -- to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and activist judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that. They don't seek to win debates on the merits of their argument; they seek to shut down debates by order of the court. And even in courtrooms, they apply a double standard. Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned. Only their favorite precedents are to be considered "settled law," and everything else is fair game.

The sum effect of these capricious rulings has been to spread confusion instead of clarity in our vital national debates, to leave resentment instead of resolution, and to turn Senate confirmation hearings into a gauntlet of abuse. Over the years, we have all seen the dreary rituals that now pass for advice and consent in the confirmation of nominees to our Supreme Court. We've seen and heard the shabby treatment accorded to nominees, the caricature and code words shouted or whispered, the twenty-minute questions and two-minute answers. We have seen disagreements redefined as disqualifications, and the least infraction of approved doctrine pounced upon by senators, their staffs, and their allies in the media. Always hanging in the air over these tense confirmation battles is the suspicion that maybe, just maybe, a nominee for the Court will dare to be faithful to the clear intentions of the framers and to the actual meaning of the Constitution. And then no tactic of abuse or delay is out of bounds, until the nominee is declared "in trouble" and the spouse is in tears.

Of course, in the daily routine of Senate obstructionism, presidential nominees to the lower courts are now lucky if they get a hearing at all. These courts were created long ago by the Congress itself, on what then seemed the safe assumption that future Senates would attend to their duty to fill them with qualified men and women nominated by the president. Yet at this moment there are 31 nominations pending, including several for the Fourth Circuit Court of Appeals that serves North Carolina. Because there are so many cases with no judges to hear them, a "judicial emergency" has been declared here by the Administrative Office of U.S. Courts. And a third of the entire Fourth Circuit Court of Appeals is vacant. But the alarm has yet to sound for the Senate majority leadership. Their idea of a judicial emergency is the possible confirmation of any judge who doesn't meet their own narrow tests of party and ideology. They want federal judges who will push the limits of constitutional law, and, to this end, they have pushed the limits of Senate rules and simple courtesy.

As my friend and colleague Senator Tom Coburn of Oklahoma points out, somehow these very same senators can always find time to process earmark spending projects. But months go by, years even, and they can't get around to voting on judicial nominations -- to meeting a basic Senate duty under our Constitution. If a lobbyist shows up wanting another bridge to nowhere, or maybe even a courthouse with a friend's name on it, that request will be handled by the Senate with all the speed and urgency of important state business. But when a judicial nominee arrives to the Senate -- a nominee to preside at a courthouse and administer justice -- then he or she had better settle in, because the Senate majority has other business and other priorities.

Things almost got even worse a few years ago, when there were threats of a filibuster to require 60 votes for judicial confirmations, and threats in reply of a change in Senate rules to prevent a filibuster. A group of senators, nicknamed the "Gang of 14," got together and agreed we would not filibuster unless there were "extraordinary circumstances." This parliamentary truce was brief, but it lasted long enough to allow the confirmation of Justices Roberts, Alito, and many other judges. And it showed that serious differences can be handled in a serious way, without allowing Senate business to unravel in a chaos of partisan anger.

Here, too, Senators Obama and Clinton have very different ideas from my own. They are both lawyers themselves, and don't seem to mind at all when fundamental questions of social policy are preemptively decided by judges instead of by the people and their elected representatives. Nor have they raised objections to the unfair treatment of judicial nominees.

For both Senator Obama and Senator Clinton, it turned out that not even John Roberts was quite good enough for them. Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator's measure? Well, a justice of the court, as Senator Obama explained it -- and I quote -- should share "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

These vague words attempt to justify judicial activism -- come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama's standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama's standard, even Judge Roberts didn't measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it -- and they see it only in each other.

I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me. And yet when President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president's call to make.

In the Senate back then, we didn't pretend that the nominees' disagreements with us were a disqualification from office even though the disagreements were serious and obvious. It is part of the discipline of democracy to respect the roles and responsibilities of each branch of government, and, above all, to respect the verdicts of elections and judgment of the people. Had we forgotten this in the Senate, we would have been guilty of the very thing that many federal judges do when they overreach, and usurp power, and betray their trust.

The surest way to restore fairness to the confirmation process is to restore humility to the federal courts. In federal and state courts, and in the practice of law across our nation, there are still men and women who understand the proper role of our judiciary. And I intend to find them, and promote them, if I am elected president.

Harry Truman said that he gave "more thought, more care, and more deliberation" to the selection of judges than nearly any other duty of the office. I will bring that same level of care and caution to my judicial nominations, expecting in return that the Senate will do its own part, and confine itself to the duty of confirming qualified men and women for the courts. The decisions of our Supreme Court in particular can be as close to permanent as anything government does. And in the presidential selection of those who will write those decisions, a hunch, a hope, and a good first impression are not enough. I will not seek the confidence of the American people in my nominees until my own confidence is complete -- until I am certain of my nominee's ability, wisdom, and demonstrated fidelity to the Constitution.

I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint. I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference. My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power. They will be men and women of experience and wisdom, and the humility that comes with both. They will do their work with impartiality, honor, and humanity, with an alert conscience, immune to flattery and fashionable theory, and faithful in all things to the Constitution of the United States.

There was a day when all could enter the federal courthouses of our country feeling something distinctive about them -- the hush of serious business, the quiet presence of the majesty of the law. Quite often, you can still find it there. And in all the institutions of government there is nothing to match the sight of a court of law at its best. My commitment to you and to all the American people is to help restore the standards and spirit that give the judicial branch its place of honor in our government. Every federal court should command respect, instead of just obedience. Every federal court should be a refuge from abuses of power, and not the source. In every federal court in America, we must have confidence again that no rule applies except the rule of law, and that no interest is served except the interest of justice. Thank you very much.

April 28, 2008

ID (the Other Kind): Beginning of the Death of the Democratic Party?

Today, the U.S. Supreme Court -- in a shock 6-3 decision (shocking because Justice John Paul Stevens was on the side of the angels!) -- held that states could indeed require voters to show photo-ID before voting... causing Sen. Charles Schumer (D-NY, 90%) to eructate, "This decision is a body blow to what America stands for -- equal access to the polls" (for senior citizens, minorities, and the poor... most of whom, apparently, carry no identification).

The Supreme Court upheld Indiana’s voter-identification law on Monday, declaring that a requirement to produce photo identification is not unconstitutional and that the state has a “valid interest” in improving election procedures as well as deterring fraud.

In a 6-to-3 ruling in one of the most awaited election-law cases in years, the court rejected arguments that Indiana’s law imposes unjustified burdens on people who are old, poor or members of minority groups and less likely to have driver’s licenses or other acceptable forms of identification. Because Indiana’s law is considered the strictest in the country, similar laws in the other 20 or so states that have photo-identification rules would appear to have a good chance of surviving scrutiny.

The ruling, coming just eight days before the Indiana primary and at the height of a presidential election campaign, upheld rulings by a Federal District Court and the United States Court of Appeals for the Seventh Circuit, which had thrown out challenges to the 2005 law.

It's not just Chuck Schumer who is incensed by this ruling, and more generally, by the voter-ID laws that sparked it; almost the entire Democratic party seems up in arms about the very idea of requiring government-issued photo-ID before voters are allowed to vote.

So why are they so adamant? Let's consider a few points that may edge us away from their stated reasons -- concern that "legitimate voters" will be disenfranchised -- and towards what I think is their real motivation.

While I agree that the "poor or members of minority groups" are less likely to have government ID, that is entirely by their own choice (or more likely, their own apathy).

Mere lack of money can't stop a voter from getting identification; although the Times doesn't consider it the kind of news "that's fit to print," the related AP story is more forthcoming on this point:

Indiana provides IDs free of charge to people without driver's licenses. It also allows voters who lack photo ID's to cast a provisional ballot and then show up within 10 days at their county courthouse to produce identification or otherwise attest to their identity.

So money is no object; government ID is literally "priceless."

Where is the evidence that registered voters who are senior citizens are less likely to have photo-ID from the government than younger voters?

In fact, I wouldn't be surprised to find that they're more likely, not less, to have identification. I suspect this unsourced claim is intended to broaden the pool of putative "victims" of voter-ID laws... and especially to broaden it to include as many Republicans as possible.

The Times article ends a heart-rending story about a black woman, a senior citizen, turned away from the polls in Indiana for lack of ID. The last line: "Ms. Williams, in her early 60’s, is black -- and is a Republican." (Cue melodramatic music.)

Last and most important point. When I say this decision, and the legislation it will spark, could spell the death of the Democratic Party, I don't mean because it will somehow -- metaphysically, perhaps -- make it harder for senior citizens (who are more likely to vote Republican anyway), the poor, and minorities to vote. It won't; even though the latter will still vote in lesser numbers than those who are more well off and those who are not "federally protected minorities," that has nothing to do with any supposed inability to get a photo-ID.

Rather, I think it will inflict a deep wound in the Democratic Party because:

Such bills will, when fully implemented -- for example, when extended to the rest of the United States and to include absentee balloting -- make it much, much harder to commit voter fraud... and today's Democratics depend so heavily on fraud, they probably can't survive without it.

Critics of the law make much of the fact that there have been so few prosecutions for voter fraud in Indiana. But that's Indiana, where Republican election officials pretty control the elections. I doubt that voter fraud has ever been a serious problem in that state.

But how about Chicago, Detroit, St. Louis, New York City, Compton, East L.A., New Orleans, Miami, and other cities and even entire states where Democrats control the "standards" required to vote? That is where you're going to find massive voter fraud that turns the Democratic majority into a supermajority -- and the Republican minority into political impotence.

Take Loretta Sanchez: She first won California's 46th district in 1996, beating "B-1" Bob Dornan by 984 votes. California officials threw out 124; and when Congress investigated, they found 624 more votes that were definitely fraudulent... which reduced Sanchez's lead down to 236 votes (out of about 100,000 votes cast). At that point, not being able to prove that the voter fraud Congress found was enough to flip the election, the House for political reasons voted to end the investigation.

But look here... according to a column by Wall Street Journal writer John Fund, the INS subsequently found that as many as 4,023 ballots were cast in the 46th district by "illegal voters." But since there was no way to know for sure whether these four thousand Hispanic non-citizens and unregistered Hispanic voters voted for Loretta Sanchez or Bob Dornan, that could not be used in the investigation of her "victory."

(Much of this work was done after the House voted to terminate the investigation, and the full House finally shut down the committee and INS investigation before it could find even more voter fraud, thus embarassing Newt Gingrich even further.)

But there is more in that same John Fund column:

In 2002, Dean Gardner, a losing GOP candidate for California's state legislature, sent out a survey to 14,000 first-time voters. A total of 1,691 surveys came back. The results were startling: 76 people admitted that they weren't citizens but had voted, while 49 claimed not to have registered at their correct residence, as the law requires. Gardner lost by only 266 votes.

In the 2000 election, as the Missouri secretary of state later discovered, 56,000 St. Louis-area voters held multiple voter registrations. No one knows how much actual fraud took place, but it may have played a role in the Democratic defeats of incumbent Republican senator John Ashcroft, who lost his seat by 49,000 votes, and gubernatorial candidate Jim Talent, who lost by 21,000 votes....

Note that this only counts actual, bona-fide election fraud; Democrats also have an array of legal or quasi-legal ways to prevent enemy votes from being counted, ranging from closing polls in Republican-leaning districts earlier than those in Democrat-leaning districts, to hypercritical challenging of Republican votes by elections boards, to selective recounts, all the way to actually filing lawsuits attempting to suppress the Republican vote (as in the Florida cases filed in Martin and Seminole counties in 2000, seeking to disenfranchise 25,000 absentee voters). None of these would be affected by voter-ID laws.

I believe that voter fraud increased substantially after President Bill Clinton signed the motor-voter bill in 1993 -- which I vigorously opposed from the very beginning: If a person has so little interest in the franchise that he won't bestir himself to register unless he's practically forced, then I don't want him voting at all. Fund evidently agrees:

Why is such activity proliferating? It flows from the success of Democratic lawmakers in pushing aside clear, orderly, and rigorous voting procedures in favor of elastic and "inclusive" election rules that invite manipulation. A machine for corruption is the 1993 "Motor Voter Act," the first bill that President Clinton signed. The law requires government officials to allow anyone who renews a driver's license or applies for welfare or unemployment to register to vote on the spot, without showing ID or proof of citizenship. It also allows ID-free registration by mail. The law also makes it hard to purge voting lists of those who've died or moved. All this makes vote fraud a cinch, almost as easy as when Tammany Hall handed out pre-marked ballots.

In California, it is actually against state law for polling places to demand any form of ID that indicates citizenship. Not even Democrats try to defend that on its own grounds; it was simply pushed through the legislature in a power play. There can be no other purpose for such a bill than to make committing voter fraud as easy as taking a pie in the face.

ACORN (Association of Community Organizations for Reform Now), a socialist group that agitates for various left-wing causes, is the king of registration fraud, I suspect, having registered thousands and thousands of fake voters. But they have many competitors, including the Public Interest Research Group and Project Vote... nearly all of whom lean very far to the left.

I am convinced that it is this fact -- not weird speculation about the poor and certain minorities and their lack of interest in obtaining IDs -- that actually animates and drives the intense Democratic opposition to voter-ID laws across the country. But why would Democrats be so anxious to lock into place a system that practically begs for fraudulent voting -- unless they believe they really and truly need election fraud to stay in power?

I take their own obvious opinion of themselves and their election strategy very seriously. Thus I say again: If voter-ID bills sweep the rest of the country (the 30 states, plus D.C., that have no requirement to show a photo-ID before voting), and especially if it is extended to absentee balloting, then the Democratic Party as we know it today could collapse. It would most probably be replaced by a new and much more moderate Democratic Party. (It's much less likely to be replaced by a different party, since we have been stuck with these two for more than 150 years.)

But either way, the heyday of the contemporary, ultra-leftist Democratic Party of 2008 -- that can dither between nominating Hillary Clinton (left) or Barack Obama (lefter); that can openly call for America to declare defeat and go home from a war we're winning; that responds to a possible recession by proposing staggering tax increases (economic policy which even John Maynard Keynes rejected); that is willing to ally itself with America's enemies (and Islamic religious fundamentalists), applauds Communists like Oogo Chavez and Raul Castro, and argues that the CIA cannot interrogate captured foreign terrorists held abroad any harsher than police can interrogate an American citizen suspected of robbing a convenience store; that is so radical, it cannot gain power except through voter fraud -- that kind of Democratic Party is soon to pass from history.

March 25, 2008

Justice vs. Justices

Injudicious Judiciary
, Liberal Lunacy
, Ludicrous Lawsuits

Hatched by Dafydd

So today, the Supreme Court -- by a somewhat surprising 6-3 vote, with Justice John Paul Stevens in the majority (!) -- held that the President of the United States (that would be George W. Bush for a few more months) has no authority to order states to comply with elements of international treaties... in this case, with a ruling by the International Court of Justice at the Hague, a.k.a. the "World Court":

In a death-penalty case that has become an international issue, the Supreme Court declared on Tuesday that President Bush had no power to tell the State of Texas to reopen the case of a Mexican who has been condemned for murder and rape.

By 6 to 3, the court ruled that the president went too far in 2005, when he decreed that the states had to abide by a 2004 decision by the World Court. That decision found that several dozen Mexican citizens who had been sentenced to death in the United States had not been given the assistance from Mexican diplomats that they were entitled to receive under an international treaty.

It's interesting that nobody appears to be arguing that Jose E. Medellin and his fellow bangers might be innocent of kidnapping two teenaged girls -- Elizabeth Pena, 16, and Jennifer Ertman, 14 -- gang-raping them repeatedly, then murdering them so they couldn't identify their assailants; they just complain that Texas didn't tell him he had to right to chat with someone from the Mexican diplomatic mission, which is required by some treaty we signed.

Following the rapes, the men dragged the bleeding girls to a wooded area as they begged for their lives. Two men initially tried to strangle Jennifer with a belt wrapped around her neck with one pulling at each end. When the belt broke, they strangled her to death with a shoelace. Medellin later complained, “the bitch wouldn’t die,” and it would have been “easier with a gun.” Elizabeth was also strangled to death with her shoelaces. The murderers then divided money and jewelry taken from the girls and several joined Medellin at the home of one of the men’s brother and sister-in-law. There, they bragged about the rapes and murders. Medellin explained to the sister-in-law that the girls had been killed to prevent them from identifying him and his accomplices. A few days later, the couple reported the crime to police.

The Justices held that the president has only two sources for his power:

Legislation from Congress, which he is allowed (required) to enforce;

Plenary powers inherent in the office, according to the Constitution.

Since neither gave Bush authority to tell Texas to hold a new trial in this case, his order, which Texas ignored anyway, was null and void.

Naturally, I agree with this ruling; I thought Bush's original order was a craven surrender to the forces of leftism. But the real reason for this post is that I am truly anxious to see how liberals are going to turn this into an attack on President Bush.

I just know that somehow, his attempt to enforce "international law" at the expense of American sovereignty and of states' rights -- the rights of one of the original Confederate states, yet, his home state! -- will be twisted by some arcane mechanism into an indictment of Bush himself, not so much of the Court (that decision is given good blocking by the presence of Stevens in the majority).

We're currently accepting entries demonstrating how the liberal Left will use this as a stick to bash Bush. No lucicrous theories, please; give us realistic scenarios by which Democrats can argue that this really proves that Chimpy McBushitler is a racist, sexist, homophobe, or other kind of bigot.

Here is our own entry:

It figures that the top leader of the American patriarchy would go to such great lengths to free a rapist and womyn-killer; support for violence against womyn is exactly the sort of thing we've come to expect from misogynists like Bush.

March 7, 2008

In a ruling almost certain to ignite a chalkboard revolution, a California appellate court unanimously (3 to 0 in In re Rachel L., et al.) held, in essence, that parents cannot homeschool their kids unless the parents have a valid teaching credential for the appropriate grades.

And of course, in order to get a valid teaching credential, you must attend a "multiple subject teacher preparation program." This requirement is only satisfied by getting a BA in Education, or else taking a post-graduate course of study for at least one year; and it must include student teaching.

In other words, for all intents and purposes, the court has ruled that only credentialed teachers can teach their own kids at home. Others who want their kids taught at home must hire a tutor with a state teaching credential, as above. This is a full-blown assault on parents who don't want their kids indoctrinated in the latest leftist fads in the public schools, but who haven't enough money for private tutoring or a private school, and who cannot find a low-cost religious school near enough for their kids to attend.

At this point, it appears the only option for parents who don't like what their kids are taught in the public schools is to form their own private school -- and then get the state to certify that school. This may be difficult, as it's in the vested interest of school districts to have as large an enrollment as possible in the public schools, since that is the basis of the school's budget as set by the state. In addition, the California Department of Education is in thrall to the California Teachers Association, and the CTA hates and despises homeschooling... because the moms and dads who teach their own kids obviously have no reason to join the union.

Tthus, there is little incentive for a school district to certify any private school that is not a big corporation who can take the district to court to force certification.

I'm not a lawyer, but I sometimes play one online, to my own amusement. (And to the hysterical consternation of real lawyers, such as Patterico, Beldar, and the lads at Power Line, who seem to believe that graduating from law school, passing the bar exam, and practicing as attorneys for decades gives them some sort of superior "knowledge" about the law. Faugh! Bourgeois credentialing fetishists.) Reading through the In re Rachel L. decision, it looks like the appellate court is on fairly firm legal ground... which only shows that "the law is a ass, a idiot," as Beadle Bumble observed in Dickens' Oliver Twist.

The mandatory schooling laws were enacted at a time when many parents saw no purpose in their kids learning anything beyond a 2nd or 3rd grade reading ability and "sums." And the law was also passed in the progressive/"liberal fascist" era, when those running the country firmly believed that it didn't take parents to raise a child... it took the entire nation, and parents were merely unhelpful roadblocks to statist indoctrination. It took... trained and credentialed "experts."

Nowadays, parents pulling their kids out of school almost never do so because they don't want them to be educated; they pull their kids out because they do want them educated, and they don't believe their pathetic public school system is up to the job. It's long overdue to revisit those laws and make some very significant changes... while we still can.

The court in the current case relied much on In re Shinn, 195 Cal.App.2nd. 683, decided in 1961; but part of that ruling found:

To qualify as a bona fide school, a place of learning must have competent teachers capable of teaching. The evidence indicates that appellants, in conducting their self-education program, failed to fully comply with Education Code, section 7901, setting forth the courses required to be taught at a private school. Dr. Shinn admitted that the children did not receive any instruction in civics or in California history. Home education, regardless of its worth, is not the legal equivalent of attendance in school in the absence of instruction by qualified private tutors. Accordingly, the juvenile court had evidence to support its finding that the Shinn children were not being instructed in a private fulltime day school by persons capable of teaching. It was justified in concluding that appellants violated the compulsory education law.

In the current case (In re Rachel L., et al), the appellate court noted the following:

The attorney representing the younger two children asked the juvenile court to
order that the children be enrolled in a public or private school. The dependency court
declined to make such an order despite the court’s opinion that the home schooling the
children were receiving was “lousy,” “meager,” and “bad,” and despite the court’s
opinion that keeping the children at home deprived them of situations where (1) they
could interact with people outside the family, (2) there are people who could provide
help if something is amiss in the children’s lives, and (3) they could develop
emotionally in a broader world than the parents’ “cloistered” setting.

Note that in both Shinn and Rachel L., courts found specifically that the homeschooling was academically inadequate. In addition, in the current case, the dependency court also found that the kids were kept in a "cloistered" environment and didn't interact sufficiently with kids outside the family.

So it's possible a better case could be made for homeschoolers being considered a "private school" if they did actually teach all subjects required in public school -- and also enrolled more than just the kids of one family. Thus, if a group of parents got together and created a private school, they might have a better case, even if they were not able to get the local school district to certify them. (They could perhaps appeal on the basis of bias, if they could show that their education skills were demonstrably as good as those of credentialed teachers at the local public school.)

But a much better case can be made for what I consider the real answer to the question of homeschooling: The California state legislature should add a new teaching credential for non-institutional teachers.

This credential should not require attending Ed school or engaging in a year of student teaching... which would be beyond the resources of most mothers or fathers. But it should require the potential homeschooling parents to take a test to ensure they know the required subjects well enough to teach them, plus some standardized testing of the kids to ensure that the kids are not just "learning the Bible" (or the Koran) and nothing more.

With such a credential, parents would of course legally be allowed to teach their own children, even without having to turn themselves into a private school (a kludgey work-around for the obvious animosity of the Department of Education towards homeschoolers).

The same new teaching credential should cover another kind of teacher as well, one with relevant of "life experience" to take the place of the "multiple subject teacher preparation program" and student teaching. It's unconscionable that, for example, a military instructor with years of experience training officers and enlisted men can't teach high school; but a sheltered 21 year old with a BA in Education from Cal State and a year of student teaching -- even with only the bare minimum subject-matter knowledge -- is qualified to teach any subject in any public school, except foreign language.

Naturally, the majority Democrats in the legislature will kill such a bill in committee; but that's fine... because that will give Republicans challenging the Democratic incumbents a real issue to use to fight their way into the state Assembly or Senate... an issue that appeals across the board from left to right, and especially among black, Hispanic, and other minority parents whose children are stuck in dreadful school districts -- as well as suburban soccer moms who are increasingly unhappy with the local district's NOW, NARAL, GLADD-written curriculum on sex education; their AIM and La Raza-written curriculum on California history (Aztlan!); the AMA's push to distribute condoms and teach kids how to use them in middle school; and the American Psychiatric Association recommendations on drugging kids in classrooms without even parental notification, let alone consent.

California is a liberal state; there is no doubt about it. But it's not as liberal as New York or Massachusetts... obviously, seeing how the vote runs here -- not just for the Governator but for president, too. In 2004, John Kerry won California by only 9 points, compared to 19 points in New York and a whopping 25 points in Kerry's home state. It's absurd that Democrats utterly dominate both chambers of the legislature. But one reason is that Republicans haven't been able to articulate any solid reason why they should oust incumbent Democrats.

Well, now they can. If, that is, the GOP can get off the stick and on the hump and start proposing popular, party-line crossing legislation... like making it easier for parents who want to homeschool and retired professionals to get credentialed, without having to drop everything and go back to college all over again.

There are some fields where you only want trained experts to participate. But when it comes to educating kids, having a knowledgeable and caring teacher and a disciplined environment (where kids can be actually punished for acting out, for example), is far more important than "expert" credentialing.

November 12, 2007

Federal Judge Declares "Mistrial" Equivalent to "Acquittal"

Court Decisions
, Injudicious Judiciary

Hatched by Dafydd

U.S. District Judge Benjamin H. Settle -- a Bush-43 appointee -- has found a novel way to prevent a cowardly Army lieutenant from having to stand trial at a court-martial for refusing to deploy to Iraq... and for calling the Commander in Chief a war criminal:

U.S. District Judge Benjamin H. Settle ruled yesterday that no court-martial will be held for Watada, a 1996 Kalani High School graduate, pending the outcome of his claim that it would violate his Fifth Amendment rights by trying him twice for the same charges.

Watada's first court-martial ended in a mistrial in February. Settle wrote that the military judge likely abused his discretion in declaring the mistrial.

Say, that's a good one: Judge Settle has just created three novel legal principles in one sitting... which bests the record of Charlemagne "Chipmunk Cheeks" Brandenborjk, who once consumed eleven distinct varieties of turnip borscht in a single meal. Judge Settle settled the following burning (at least smoldering) legal questions:

Does the principle of "double jeopardy," by which a person acquitted of an offense cannot be tried again on the same charge, extend also to cover prosecutions that end in a mistrial with no verdict at all? Judge Settle says Yes, thereby upending about thirty-eight decades of case- and statutory law.

Do the ordinary civilian courts have jurisdiction over military officers being tried in courts-martial by military judges for a military offense against the Universal Code of Military Justice during wartime? Judge Settle says Yes, thereby startling the stockings off'n Gen. George Washington.

Can a civilian judge look into the heart of a military judge and judge that the judge only called a mistrial for sneaky, underhanded reasons... and not because the defendant first stipulated X, and then based his defense on the denial of X? Judge Settle says Yes, and then goes on to guess what playing card you're hiding in your pocket.

Oh well; fools rush in where angels have dirty faces.

As to the first principle, most judges have accepted the basic idea that double-jeopardy only kicks in when there's been an actual verdict of not-guilty. I've never heard before that prosecutors are barred from retrying a defendant after a mistrial; perhaps one of our many lawyer-readers can enlighten us on this fine point of law.

The second is interesting, as it implies that military courts are inferior to civilian courts... even when trying military charges during wartime. (In his next case, Judge Settle is going to pick the 2008 Miss America and award last month's World Series to Colorado.)

But it's the third principle that's really wicked cool: According to Judge Settle -- who served for three years in the Judge Advocate General (JAG) corps -- anytime the Army (or presumably any other service) court-martials some malcontent, rabble rouser, or boot-quaking yellowbelly, any district judge in the general vicinity can step in and stop the trial on the grounds that he personally thinks the military judge is in cahoots with the prosecutor.

In February, military judge Lt. Col. John Head unexpectedly declared a mistrial in the third day of Watada's trial as the soldier prepared to take the stand in his own defense.

Head did so after he expressed concern that Watada did not understand what the soldier had earlier agreed to in what's called a stipulation of facts because it conflicted with his defense.

Now there's some obvious skulduggery on the part of Col. Head!

Happily, the Honolulu Advertiser has persuaded a fair-minded and unbiased analyst to give his considered opinion:

Honolulu attorney Eric Seitz, who represented Watada at the time, said yesterday that he believes the latest federal court decision means the case against Watada essentially is dead.

The Army can appeal the case to the 9th U.S. Circuit Court of Appeals, which would likely be unsuccessful, Seitz believes, or even the U.S. Supreme Court.

Seitz, an experienced military law attorney, said Watada's lawyers should resubmit his resignation and the Army should accept it "and put an end to it."

Sage advice from Watada's former attorney.

At some point, President Bush has got to put his foot down anent the clear and unambiguous distinction between military justice and civilian procedures: We simply cannot have the federal courts -- which are themselves completely unable to protect us from known terrorists -- monkeying with duly constituted courts-martial to make them equally worthless.

And while we're on the subject, President Bush needs to reach right into the State Department... and fire any diplomat who refuses to accept a posting to Iraq. That plus a vigorous prosecution of Lt. Ehren Watada would go a long way towards refocusing our governmental resources on stopping the bad guys, rather than endlessly debating the provenance and niceties of the Iraq war.

November 9, 2007

Fake Post on Attorney General Michael Mukasey

This is a "fake post" because all I plan to do is quote liberally from a New York Times story... then make a stupid, "shaggy dog" joke at the end. So stop reading! Don't proceed any further, I beg of you... it's all just a colossal waste of your valuable time.

The attorney general’s post became vacant in late August when Mr. Gonzales stepped down. For months, he had faced severe criticism over accusations that political calculations played a part in the department’s dismissal of some United States attorneys last year and over his role in shaping the administration’s policies on torture and electronic surveillance.

Mr. Mukasey was initially hailed by Democrats as a leader who would bring welcome change to the Justice Department. His nomination had been recommended by Senator Charles E. Schumer, Democrat of New York, a member of the party leadership familiar with Mr. Mukasey from his service on the bench in New York.

On the first day of his confirmation hearings, Mr. Mukasey said he would resign if directed by the White House to take any action he believed was illegal or violated the Constitution, winning Democratic praise [..."And there was great rejoicing"]. On the second day of his testimony, Mr. Mukasey sidestepped the question of whether waterboarding was torture and also suggested that the president’s Constitutional powers could supersede federal law in some cases [..."there shall be weeping and gnashing of teeth"].

Sen. Chuck Schumer (D-NY, 100%) appears to have known Michael Mukasey from long back; and Schumer, relying upon his own fond memories instead of the intensive vetting and interviewing they usually use, believed that Mukasey was the ideal man to turn the Department of Justice into the Department of Bush Bashery.

Based on past experience, Schumer clearly expected Mukasey to become a thorn in the president's eyes, eventually forcing President Bush to reject all of the various "tortures" that he currently allows CIA interrogators to employ:

Shouting at top al-Qaeda prisoners

Making them stand at attention

Waterboarding them

Even giving them the horrific and internationally condemned "belly slap"

Perhaps, Schumer fantasized, Mukasey's relentless opposition would force Bush to release all of the terrorist prisoners at Guantanamo Bay into ordinary civilian court, where liberal judges could swiftly dismiss the cases -- when the government proved unwilling to yank military leaders from the field to the courtroom and hand over critical, classified national-security documents as the defense demanded.

Surely Schumer daydreamed that he would be able to parlay these dismissals into a campaign theme that Republicans enjoyed torturing innocent people... just for kicks. But suddenly, Mukasey threw a monkey wrench into the ointment. He became a Bushenstein's monster, making it clear whose side he was really on.

Schumer and the Democrats found themselves trapped in a world they had made: Having brought his name up in the first place and pushed him so hard, they could not turn on Mukasey when they realized how different he was than Chuck Schumer remembered. The senior senator from New York would lose so much face, he'd look like Red Skull. Or maybe Alan Cranston.

Clearly, the Democrats were stunned and hurt by this about-face on Mukasey's part; and I'm sure they've spent many a sleepless night wondering what bribes, threats, or other inducements the president must have offered the Attorney General to get him to switch like that.

But I think they've missed an obvious answer: Has anyone ever considered the possibility that... Judge Mukasey simply grew in office?

~

Well, see, I warned you about this "post" -- charlatanism, through and through. But you just wouldn't listen. And as Larry Niven is wont to say, "not responsible for advice not taken."

October 10, 2007

Don't Throw Illegals in That Breyer Patch

Immigration Immolations
, Injudicious Judiciary

Hatched by Dafydd

A San Francisco-based federal judge, who grew up in San Francisco, a graduate of UC Berkeley's Boalt Hall Law School, former Watergate prosecutor, who worked as a counsel at the Legal Aid Society in San Francisco for his first job as an actual lawyer, has put the kibosh on a crazy scheme to send letters to businesses warning them about employees whose Social Security numbers don't match their names.

See if you can guess which recent president appointed Judge Charles Breyer, younger brother of you-know-who, to the bench.

Breyer said the new work-site rule would likely impose hardships on businesses and their workers. Employers would incur new costs to comply with the regulation that the government hasn't evaluated, and innocent workers unable to correct mistakes in their records in the given time would lose their jobs, the judge wrote.

"The plaintiffs have demonstrated they will be irreparably harmed if DHS is permitted to enforce the new rule," Breyer wrote.

The so-called "no match" letters, including a Department of Homeland Security warning, were supposed to start going out in September but were held after labor groups and immigrant activists filed a federal lawsuit.

Can someone please explain to me again why it will be good for the nation if social conservatives cast a "protest vote" for a third-party candidate in 2008, making it more likely that Sen. Hillary Rodham Clinton Rodham (D-Carpetbag, 95%) will become President Hillary, thus getting to appoint the next three Supreme Court justices plus hundreds of other federal judges? Will her nominees be more like Justices Roberts and Alito -- or more closely resemble Judge Charles Breyer and his big brother Stephen?

[P]laintiffs, which include the AFL-CIO, the American Civil Liberties Union and the U.S. Chamber of Commerce, saw the decision as a significant victory against a program they believe would foster discrimination on the work site, lead to job losses by lawful employees and expose businesses to additional expenses and the fear of prosecution.

Remember, we're only talking about DHS sending letters to businsses whose employee names don't match the Social Security number the businesses provided and warning those businesses that there are grim consequences for defying immigation law. I wonder how Judge Breyer would rule on a southern-border security fence?

So the next time "anti-amnesty" conservatives demand to know why we're not enforcing the immigration regulations that are already on the books... rather than blaming Bush first, they should instead try asking Judge Breyer and the scores of other federal judges just like him, who see it as a terrible and unconstitutional burden that businesses be forced to make an effort to determine if their employees are legally allowed to work; that county precincts take at least a quick peek at some picture I.D. before allowing someone to vote; and that the Border Patrol attempt to, you know, guard the border.

While beholdest conservatives the mote in Republicans' own eye, and beholdest not the Rock of Gibralter in the eye of the Democrats?

September 25, 2007

Military Tribunals Finally Listening to Big Lizards' Advice

Last June, a pair of judges on U.S. military tribunals issued a ruling that may be the most boneheaded technicality in American judicial history. (They were not ruling on the same case, but they used the exact same excuse in two different cases to dismiss all charges against enemy combatants, holding that the military tribunals themselves had no jurisdiction.) We wrote about it at the time:

In what AP calls "a stunning reversal for the Bush administration's attempts to try Guantanamo detainees in military court" -- but which rational observers would call "a shockingly thin example of dismissal by technicality" -- a military judge has dismissed murder charges against a detainee at Guantánamo Bay... because the military's combat status review tribunal only classified him as an "enemy combatant," rather than as an "unlawful enemy combatant"...

The law says that only those persons who are qualified to be designated as unlawful enemy combatants can be tried; the clear intent and substance of the law is not affected by whether the earlier tribunal used the same words as the later-enacted law, but by whether they used the same standards... and Judge [Army Col. Peter] Brownback should jolly well understand that.

All he needed to do was check that the criteria used by the earlier tribunals to declare someone an "enemy combatant" are the same as those that used today to declare someone an "unlawful enemy combatant." Maybe this is the non-lawyer in me; but it was utterly clear to everyone, including the detainees, that the entire purpose of the status-review tribunal was to determine whether they were bad enough to warrant trial by a military tribunal.

The detainees knew exactly what that meant: They knew that if they were found to be "enemy combatants," they would be tried by a military court. Now the defense argues -- and the judge, Army Col. Peter Brownback, seems to have independently argued himself into believing -- that the trivial difference in words violates the rights of the detainees, because they didn't know they were in jeopardy of trial if found to be enemy combatants... which was the very term used at the time to designate those detainees eligible for trial!

The two judges -- Brownback and Navy Capt. Keith Allred -- ruled not only that they could not preside over the cases against the two enemy combatants (one of which was the infamous Salim Ahmed Hamdan of the even more infamous Hamdan Supreme-Court decision), they could not even hear evidence about whether the two were, in fact, "unlawful enemy combatants," as opposed to mere "enemy combatants." They decided they (or any other tribunal judge) lacked any jurisdiction whatsoever, and all the cases against all the detainees should be dismissed.

It was like a Barry Sheck dream come true.

Fortunately, a three-judge panel of the Military Tribunal Appellate Court reads Big Lizards. At least, I can only conclude that, as they used virtually the same argument today in overturning the decision of Judge Brownback as we argued in the previous post last June. (They did not specifically consider Allred's decision; but since it was identical with that of Judge Brownback, one presumes the same ruling will reverse that of Allred as well; I wonder if he will mulishly force the court to do so explicitly?) According to the New York Times:

The three appeals judges said yesterday that Judge Brownback had “abused his discretion in deciding this critical jurisdictional matter without first fully considering” the government’s evidence. The appeals court sent the case back to Judge Brownback for further consideration....

The military appeals court said in its ruling yesterday that Judge Brownback was wrong in concluding that he did not have the authority to decide whether a detainee was an “unlawful” enemy combatant, which would give his court the power to hear a war-crimes case.

The court said the trial judge could hear the government’s evidence that a detainee was an unlawful combatant. An unlawful combatant, for example, could be a fighter who does not wear a uniform and conceals his weapons.

It's hard to fathom just how stupid were the original decisions. I took a stab at in the June post; but reading it over, I don't think I succeeded. Let's see if I can do better in my second time at bat:

Congress originally passed a law setting up a system of military tribunals. The basic procedure was that the president first had to evaluate every detainee's case and determine whether each was or was not an "enemy combatant." Those determined to be enemy combatants would then be tried by the tribunals, while the rest would have to be released.

They went through the process; the Pentagon held hearings and determined that 80 of the 300+ detainees qualified as enemy combatants. They put them on trial. (The classification hearings determined that a number of detainees used to be enemy combatants but were no longer; in several well-known cases, it became clear the Pentagon was punked.)

But before the trials, Hamdan went to the Supreme Court and successfully argued that the procedures at the trial itself were unconstitutional. The Supreme Court did not hold that there was anything wrong with the process that classified Hamdan and the other 79 as "enemy combatants," nor that there was anything wrong with the label itself.

But when Congress enacted a new law, responding to the Hamdan decision, they used a slightly different label: They said that only "unlawful enemy combatants" could be tried. However, they used the exact, same criteria to determine status as an unlawful enemy combatant as had been used under the previous law to determine status as an enemy combatant. The two terms were de-facto identical, and even de-jure -- if one dug so deep as to consider the definition, not merely the label.

Yet when the first two cases came to trial, Allred and Brownback both ruled that they lacked jurisdiction to hear the trials, because Hamdan and Omar Ahmed Khadr had only been designated "enemy combatants," per the first law, not "unlawful enemy combatants," per the second.

This might have been all right... except that they also ruled that they lacked jurisdiction even to hear any evidence that the two defendants were, in fact, unlawful enemy combatants under the new designation; or that, in fact, the two terms had identical definitions.

This is the ultimate in technicalities, exactly the sort of thing that confusticates ordinary people about the American judicial system: Horrific murderers and terrorists should be turned loose -- because the administration used a slightly different label for them (based on earlier legislation) than was picked by a later Congress in writing subsequent legislation, even though the two labels were defined by identical language in each act.

That last point (6) is the dumbass ruling that was struck down today; the appellate court held that the two previous judges did indeed have jurisdiction to hear evidence that the "enemy combatants" (old label) were also "unlawful enemy combatants" (new label):

In the ruling Monday, the military appeals judges, the United States Court of Military Commission Review, agreed that the law written by Congress did say that finding by a military panel that a detainee was an “unlawful” enemy combatant was a prerequisite for prosecution. But the judges said Congress intended the Guantánamo courts to apply usual procedures of military courts.

“This would include the common procedures used before general courts-martial permitting military judges to hear evidence and decide factual and legal matters concerning the court’s own jurisdiction over the accused appearing before it,” the appeals judges wrote. [One can almost "hear" the annoyance and exasperation in the appellate judges' decision.]

Again, since there is no difference between the criteria for each label, it should be easy to prove... unless Brownback and Allred decide to dig in their heels and declare that Congress was wrong to define unlawful enemy combatant as it did; the judges could tack on one impossible criterion after another until they can achieve their goal: making it impossible to prosecute anyone for anything before a military tribunal.

Dennis Edney, Mr. Khadr’s Canadian lawyer, said the defense was considering whether to appeal to the United States Court of Appeals for the District of Columbia Circuit. If there is an appeal, it could delay the resumption of Guantánamo cases yet again.

Mr. Edney said he was disappointed by the military panel’s ruling but not surprised. “Omar Khadr still faces a process that is tainted, and designed to make a finding of guilt,” he said.

Well, yeah; and Mr. Edney is doing everything in his powe to prevent the court ruling, thus put-off any finding of guilt. I believe he has fallen for the great temptation of defense attorneys, where getting the client off becomes the overriding goal, rather than ensure he has a fair trial. (This is the snare into which Lynne Stewart fell, finally winding up convicted of passing messages from Sheikh Omar Abdel-Rahman to his terrorist cell.)

The real underlying problem here should be obvious: There is an amazing amount of resistance among the military's Judge Advocate General (JAG) Corps to the very idea of trying terrorist detainees in military tribunals, notwithstanding both statutory law and military tradition. Most lawyers are liberals, and this evidently applies even when the lawyer works for the military.

I believe most of them desperately want all detainees to be charged and tried in civilian courts, with the full panoply of criminal-defendant rights to counsel of their choice, open and public trial, the ability to subpoena all evidence (including heavily classified evidence) they claim will help their defense, and the power to subpoena all individuals involved in their capture -- from the soldiers trying to fight a war in the field to the Secretary of Defense and even the Commander in Chief who ordered the war fought in the first place -- and haul them all into court to testify for as many weeks as the judge orders.

We see this same tendency in politicians who are too closely allied with the JAG Corps: I believe that is what drives Sens. John McCain (R-AZ, 65%) and Lindsey Graham (R-SC, 83%), for example. Among this crowd, no military tribunal process will ever be fair or sufficient: They reject the very idea of treating terrorists any differently than we treat carjackers and pickpockets. Despite the decidedly uncertain record of attempting to try terrorists in civilian courts, "Jaggers" believe that we'll forfeit the "moral high ground" if we don't sacrifice national security on the altar of judicial purity.

There is a controversial Latin saying: fiat justicia ruat coelum; "let justice be done, though heaven should fall." I happen to believe this, but it critically depends on how one defines "justice." But what these Jaggers have in mind is something far more radical -- and utterly indefensible: "Let procedure be followed, though America should fall."

Even as a libertarian-conservative-ish political non-Euclidean, I consider this a foolish and unnecessary self-immolation; I agree rather with the last sentence of the dissent of Justice Robert H. Jackson in the case Terminiello v. Chicago:

There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

This certainly applies in the Case of the Footdragging Military Judges. Let us move past the surreal technicalities, get on with the cases, and finally see the backs of these infamous detainees.

September 18, 2007

Newsflash: Clinton Judge Finds Limit to Judicial Power

Court Decisions
, Enviro-Mental Cases
, Injudicious Judiciary

Hatched by Dafydd

It's a bit sad that I consider it newsworthy that a federal judge appointed by President Bill Clinton, Martin Jenkins, has actually thrown out an activist, leftist lawsuit, filed by the state of California against automakers, alleging they have damaged the state by making cars that contribute to global warming. (Actually, the lawsuit was filed by former governor, former mayor, now Attorney General and perpetual nutjob Jerry Brown "on behalf of" the state of California; I didn't get to vote on it.) The judge held that setting such policy was rightly the task of the legislative branch of the federal government, not the judiciary:

A U.S. federal judge tossed out a lawsuit by California's attorney general on Monday seeking hundreds of millions of dollars from six automakers for damaging the state with climate-changing greenhouse gases.

Martin Jenkins, a federal judge in the Northern District of California, said the issue of global warming should be decided in the political rather than legal arena.

"The Court finds that injecting itself into the global warming thicket at this juncture would require an initial policy determination of the type reserved for the political branches of government," Jenkins wrote in approving the automakers' motion to dismiss the case.

(It's unclear from the article, but I think Judge Jenkins held that the federal courts do not have jurisdiction.)

I am stunned. I thought this would be a slam-dunk before a liberal judge in blue-state California. Evidently the Office of the Attorney General was likewise stunned, because its spokesman just made what is simultaneously the most fatuous and the most legally incompetent argument I've ever seen from that body:

The suit was the first seeking to hold manufacturers liable for global warming damages caused by greenhouse emissions. It said cars made by the six automakers account for more than 30 percent of human-generated carbon dioxide emissions in California, the most populous U.S. state.

"We understand why a district federal judge may not want to jump into a global warming thicket with both feet," Ken Alex, California's supervising deputy attorney general, said in an interview. "Having said that, the basic tenet of law is that where you describe a harm then there needs to be a remedy for it."

"Right now because the political branches -- the federal government, Congress and the executive branch -- have not acted, the state of California is left without a remedy."

Now I must again caution that I am not a real lawyer; I will cop to being a "Philadelphia lawyer" or a "sea lawyer," to playing one on this blog sometimes, and to thinking of myself as more informed on the law than 95% of laymen (and so much more modest, too!) So maybe I've misunderstood this point all these years.

But I remember both my lawyer father and a friend of mine who attended law school but chose not to become an attorney separately telling me the exact opposite. They said that the idea that "every harm has a legal remedy" is discussed as a false belief that many people have about the law. In other words, both these two lawyers told me that Counselor Alex is 180 degrees off course: Not every harm has a legal remedy; sometimes, bad things happen, and there is nobody you can collect from.

For example, suppose you're hiking in Yosemite, admiring the beautiful scenery. Too much so; you fail to note that the trail turns north, and you continue walking west... right into a creek, where you stumble, fall, and crack your kneecap on a rock.

Ow. Nobody can tell me that's not a "harm." You're in agony; you can't walk; you're stuck four miles from the nearest help. And you know what? There is not a single person in the world you can successfully sue. You have no legal remedy whatsoever. A bad thing happened to you -- because you were a dumbass.

Even overt actions that harm people in ways obviously known to the actor don't necessarily mean the victim has a valid lawsuit. For example, suppose the government condemns somebody's house under eminent domain (in order to build a public emergency trauma center), and suppose further they pay the owner market price plus 5%. But suppose the owner was born in that house, as were his family for the previous three generations, as well as his daughter; and suppose he would never have sold it for any amount of money at all. Hasn't he suffered a grievous harm?

Well, yes he has; but no, he has no real case against the government, because they paid him "just compensation." He has no legal remedy for the harm he suffered.

In the global-warming case, I'm certain that Jerry Brown will appeal to the 9th Circus Court, which could overturn the judge's ruling on the motion to dismiss. No matter, the loser will appeal to the Supreme Court; once there, I believe the majority will use Judge Jenkins' decision as the basis for confirming that there really, truly are limitations on legislating from the bench.

Thus it may turn out that Jerry Brown's most enduring legacy will be striking a mighty blow -- albeit inadvertently -- for judicial restraint. Exciting, isn't it?

September 6, 2007

Let's Play "Guess the President!"

A federal judge struck down parts of the revised USA Patriot Act on Thursday, saying investigators must have a court's approval before they can order Internet providers to turn over records without telling customers.

U.S. District Judge Victor Marrero said the government orders must be subject to meaningful judicial review and that the recently rewritten Patriot Act ''offends the fundamental constitutional principles of checks and balances and separation of powers.''

The suit was brought by the ACLU, and the judge's ruling would rip to shreds one of the most critical elements of our intelligence war against al-Qaeda -- in order to protect the putative "right" of terrorist suspects to privately plot attacks over the internet.

Now, here's the game: Without looking him up, can anyone guess which American president nominated Judge Marrero to the bench in 1999?

(Hint: There is a clue cleverly concealed in the sentence directly above.)

August 3, 2007

Time to Sack the Robes

Today, the Washington Post revealed the stunner that back in March of this year, a judge on the Foreign Intelligence Surveillance Court (FISC) ruled that the president had no legal authority to order the NSA to intercept phone calls originating abroad... and where the terminating point was also abroad.

Mind, this is not the "Terrorist Surveillance Program," TSP, that Democrats have been so agitated about; this case was not about calls where one end was in the United States, but rather about those where both ends -- or all ends, in the case of conference calls -- are in foreign nations... but the call happens to be routed through an American node, typically in New York or California. No information is known about the reason for the ruling or even which judge issued it (or, of course, who appointed that judge); those data are all still secret.

(It may even be a legally correct ruling; but I cannot imagine that the congressional authors intended the FISA Court to stand in between the NSA or CIA and urgent overseas terrorism intelligence. Isn't there some Supreme Court precedent that, no matter what the law says, a court can't issue an order that's just plain dumbass?)

In fact, we weren't even supposed to know this much; but House Minority Leader John Boehner (R-OH, 88%) let the beans out of the cat to anchor Neil Cavuto on Fox News:

"There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States," Boehner told Fox News anchor Neil Cavuto in a Tuesday interview.

Thus, for the last few months, the NSA has been barred by law from the most fruitful source of terrorism intelligence: phone calls from, say, Pakistan to Paris. And while we don't know the exact reason behind the limitation, we certainly know the impact... and it has been so devastating to American national security, and so preposterous that the president's power as Commander in Chief would not extend even that far -- constitutional protections now extend to all foreigners living abroad? -- that even Democrats are frantic to pass legislation undoing that disaster of a decision:

The practical effect has been to block the NSA's efforts to collect information from a large volume of foreign calls and e-mails that passes through U.S. communications nodes clustered around New York and California. Both Democrats and Republicans have signaled they are eager to fix that problem through amendments to the Foreign Intelligence Surveillance Act (FISA)....

"This means that our intelligence agencies are missing a wide swath of potential information that could help protect the American people," [Boehner] said. Boehner added that some Democrats are aware of the problems caused by the judge's restrictive ruling and the problems it has caused for the administration's surveillance of terrorism suspects.

"The Democrats have known about this for months," Boehner said. "We have had private conversations, we have had public conversations that this needs to be fixed. And Republicans are not going to leave this week until this problem is addressed."

This ruling hands us another demonstration, as if more were needed, that the federal judiciary is simply too slow, too rigid, and too deferential to precedent to be trusted with control over the gathering of intelligence in wartime. In past eras, nobody could have imagined so absurd a situation; judges did not tell the OSS what they could or could not do to intercept information about Nazi Germany, nor did the federal judiciary get to opine on whether it was legal for the United States to decode intercepted Japanese naval communications.

In particular, the current law, the Foreign Intelligence Surveillance Act, was enacted 29 years ago... not only a year before the current age of terror began but also the year before the first commercial cell phone network came into existence (in Japan). The FISA took neither modern communications nor the contemporary threat into account -- since neither yet existed.

Judges on the FISC continue to decide cases about terrorism intelligence under rules meant to govern spying on the Soviet Union during the Cold War. The USSR was not going to attack us in a matter of hours; intelligence was generally long-term, required no immediate action, and could wait days (or weeks) upon the whim of a FISC judge, while he slowly pondered and mulled his way through years of caselaw and congressional legislation (typically arising from anti-intelligence agency bias in the post-Watergate political world).

The Judicial branch is inherently too slow-reacting to be the "gatekeeper" for terrorism intelligence: They are simply incapable of making decisions on the minute-by-minute schedule required to protect the United States from future terrorist attack. It's like putting Ents in charge of national security.

The Director of National Intelligence, Mike McConnell, has been testifying on the Hill recently about a desperately needed change of mindset; he wants the gatekeeper to be, not a court -- not even the special court set up to handle "foreign intelligence surveillance" (read "spying on the Soviets") -- but the Attorney General of the United States. If necessary, I presume a judge could intervene afterwards, if any of the intelligence was introduced as evidence in a criminal or civil court case. Again, even Democrats should understand the importance of this; after all, there is at least a 50-50 chance that the next president will be, in fact, a Democrat:

The effect of the judge's decision to curtail some of that surveillance was to limit the flow of information about possible terrorism suspects, according to congressional staffers briefed on the ruling. Last week, McConnell told the Center for Strategic and International Studies that the government faces "this huge backlog trying to get warrants for things that are totally foreign that are threatening to this country...."

In April, McConnell proposed a much broader revision of FISA than what the administration is pressing Congress to approve this week. Under the new plan, the attorney general would have sole authority to authorize the warrantless surveillance of people "reasonably believed to be outside the United States" and to compel telecommunications carriers to turn over the information in real time or after it has been stored.

Democrats, still feeling heat from the MoveOn.org/Daily Kos wing of the party, have countered with a proposal that would expand the administration's surveillance authority but still leave control in the hands of the FISA Court... and which would sunset in six months, presumably forcing the president to come back to Congress again and again, hat in hand, to beg for continued authority to safeguard the nation. This completely ignores the urgent question of timeliness.

For example, civil libertarians typically argue that warrantless surveillance was unnecessary because the current law allows the CIA or NSA to get a "retroactive" FISA warrant; but that only lasts for a limited period of time -- after which, unless such a warrant is issued, the surveillance must stop and wait until the judge finally gets around to deciding. And as McConnell noted, there is a "huge backlog" for FISA warrants, a logjam that is impacting our ability to collect actionable intelligence in real-time, giving us the best chance of thwarting an attack.

Not only that, but in order to undertake surveillance under FISA and ask for a retroactive warrant later, the agency must still fill out all the paperwork first, before starting the surveillance; and the forms must include "probable cause" to tap that particular phone call, probable cause at the same level as it would take to get a warrant. Thus, no matter how suspicious a series of calls between Teheran and Mosul look, before we could listen to them under FISA, we would first have to have as much probable cause as we would need here at home to search the house of a suspected drug dealer!

This is an outrage. I strongly urge the president to get behind the McConnell proposal and really go to work twisting congressional arms behind backs to get this enacted. When talking to Democrats, stress the fact that if Hillary Clinton or Barack Obama is elected next year, then they'll have the power... so it's not a tribal-partisan issue!

Immediate update: As I write this, Hugh Hewitt reported that President Bush has just demanded that Congress enact the new legislation before they leave for their August recess... and he has announced that, if the DNI says the legislation sent by Congress to the White House does not give McConnell what he needs to protect America, then Bush will veto it and insist that Congress remain in session until they get it right.

They could ignore the president, of course, but that would be politically disasterous for the Democrats. We'll see whether the majority can get its act together in time, or whether -- just like the Iraqi parliament -- they decide their August vacation is more important.

We already have quite adequate protections against a president using the excuse of "foreign intelligence surveillance" to scoop up loads of information about American political activists; none of it could be introduced in court without a judge's approval. But as far as actual, real-time intel about pending attacks on the United States or our allies, there is no reason for federal judges even to be involved... not until months or years later, when the scene shifts to a legal case. Just as it would be absurd for battlefield commanders to have to get judicial approval before ordering an attack on a terrorist safehouse.

Only the Executive has sufficient "energy" to be trusted with collecting military intelligence.

July 25, 2007

A Constitutional Crisis - Which We'll Get to Sometime Next Fall...

Congressional Calamities
, Injudicious Judiciary

Hatched by Dafydd

The House Judiciary Committee hath spake: The refusal by the White House to allow aides and former aides (current Chief of Staff Joshua Bolton and former White House Counsel Harriet Miers) to testify under oath before the committee about every piece of confidential advice, legal opinion, and memo ever given the president -- so that the committee can go fishing and try to find something legally or politically damaging that they can use in 2008 -- is a constitutional crisis of such monumental proportions that the only recourse Congress has is to try to put Bolton and Miers in prison.

It's a crushing blow to constitutional government, government of the people, by the people, and for the people. There is no other remedy available; the national conscience requires a showdown, the destruction of the careers of two former high officials, and the loss of their liberty.

The nation is in urgent peril... Congress must have that information. And they'll get around to doing something about it just as soon as they get back from their August recess, or maybe a month or so later:

The House Judiciary Committee, in a straight party-line vote, approved a contempt resolution against White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers, setting up a constitutional battle between the Bush administration and Congress over executive privilege.

After several hours of skirmishing over whether to send a contempt resolution to the House floor, the committee voted by a 22-17 margin to approve the measure.

Speaker Nancy Pelosi (D-Calif.) and other Democratic leaders will now have to decide if and when to hold a vote by the full House on the resolution.

Update - Pelosi's office just released a statement on the issue. Pelosi signaled that the House will not take up the resolution until September.

After all, going home and campaigning is an important constitutional duty, too, you know....

June 11, 2007

Be Sure You're Sitting Down for This...

Today, a three-judge panel of the 4th circus court of appeals ruled that the commander in chief (that would be George Bush) can no longer hold an enemy combatant for the duration of hostilities... which would come as quite a shock to previous wartime presidents (if Franklin Roosevelt were alive today, he would be spinning in his grave).

Instead, two of the three judges -- Diana Motz and Roger Gregory -- agreed with each other that in future, enemy combatants captured or held in the United States should be tried in the normal criminal court system, just like shoplifters and carjackers, so that al-Qaeda sleeper-cell operatives:

Can have jihadist lawyers of their choice;

Can prevent any and all interrogation or intelligence gathering by anyone, because that would, of course, queer the criminal case against him and likely trigger an immediate release under habeas corpus;

Can subpoena all relevant or irrelevant national-security documents as part of their “defense;”

And can summons the entire command corps of Multinational Force - Iraq, all overt and covert CIA agents working in counterterrorism, and the President of the United States as "witnesses."

If the government fails to produce any of these demands, the al-Qaeda suspect must, one presumes, be acquitted and set free. Sounds fair to me.

But here is the shocker: The lone dissenting judge, Henry E. Hudson, was appointed by George W. Bush.

Of the two judges who joined the majority opinion, Motz was appointed by President William Jefferson Clinton and confirmed by the Senate in 1994, when the Democrats still controlled that body.

The other, Gregory, was given a recess appointment by Bill Clinton in the year 2000, after the Republican Senate refused to confirm him (in the waning days of the Clinton presidency; after the election; after the long count; after Vice President Gore conceded; as Clinton was trying to stack the courts).

Then in 2001, when the Senate was 50-50, and Bush was having trouble with the Democrats refusing to allow any conservative judges through, the president was forced to cut a deal with them (in May of 2001 -- remember that?) As Byron York at the National Review explains things:

After weeks of threats from Senate Democrats, this afternoon George W. Bush will send to the Senate the names of eleven nominees to the federal circuit courts of appeal. The president's choices -- he picked two Democrats, both Bill Clinton nominees, as well as several solid conservatives -- reflect the White House's understanding of how difficult it will be to confirm judges who are opposed by key Democrats in the 50-50 Senate.

First the Democrats. Bush will renominate Roger Gregory to the Fourth Circuit Court of Appeals. Gregory was originally nominated by Bill Clinton, who used a recess appointment to place him on the court after the Senate refused to act on the nomination. Democrats have made Gregory a cause celebre in recent months, alleging that Republican opposition to Gregory, who is black, was racially motivated [Bush having such a well-documented hatred of blacks]. They have aggressively pushed Bush to name Gregory, a move that was also approved by home-state senators John Warner and George Allen, both Republicans, and by Virginia governor James Gilmore, head of the Republican National Committee.

So the lone Republican judge sees the president as less of a threat to the nation than al-Qaeda, while the two Democrat judges are utterly unserious about fighting the war against global jihad: They want it "fought" as a purely criminal matter, so that it will not be fought at all.

I know you are stunned by this turn of events. I mean, who would have thunk it?

June 4, 2007

What's In a Label? Everything, It Would Seem

In what AP calls "a stunning reversal for the Bush administration's attempts to try Guantanamo detainees in military court" -- but which rational observers would call "a shockingly thin example of dismissal by technicality" -- a military judge has dismissed murder charges against a detainee at Guantánamo Bay... because the military's combat status review tribunal only classified him as an "enemy combatant," rather than as an "unlawful enemy combatant":

A military judge on Monday dismissed terrorism-related charges against a prisoner charged with killing an American soldier in Afghanistan, in a stunning reversal for the Bush administration's attempts to try Guantanamo detainees in military court.

The chief of military defense attorneys at Guantanamo Bay, Marine Col. Dwight Sullivan, said the ruling in the case of Canadian detainee Omar Khadr could spell the end of the war-crimes trial system set up last year by Congress and President Bush after the Supreme Court threw out the previous system. The ruling immediately raised questions about whether the U.S. will have to further revise procedures for prosecuting prisoners, leading to major delays. [The original law was thrown out by the Supreme Court's Hamdan decision, but not because of any irregularities in the definition of "enemy combatant" or the operation of the status-review tribunals -- the Mgt.]

But Omar Khadr, who was 15 when he was captured after a deadly firefight in Afghanistan and who is now 20, will remain at the remote U.S. military base along with some 380 other men suspected of links to al-Qaida and the Taliban.

And why didn't they label Khadr an "unlawful enemy combatant?" Because the term wasn't available as a separate category under the original law.

However, the status-review tribunals used the same criteria for the designation of "enemy combatant" as they would now use for the designation "unlawful enemy combatant." The term has changed, but the definition is the same:

The judge, Army Col. Peter Brownback, said he had no choice but to throw the Khadr case out because he had been classified as an "enemy combatant" by a military panel years earlier -- and not as an "alien unlawful enemy combatant."

The Military Commissions Act, signed by Bush last year, specifiies that only those classified as "unlawful" enemy combatants can face war trials here, Brownback noted during the arraignment in a hilltop courtroom on this U.S. military base.

All 80 of the detainees who are slated for military tribunals have that same label; thus, military judges will almost certainly dismiss all the other cases as well on the same grounds. They won't even bother to hear any evidence -- as they did not in the Khadr case: They will simply declare they have no jurisdiction and dismiss the charges.

The chief defense attorney, Col. Sullivan, goes far beyond his duty to defend his clients; he says that this decision proves the entire system of military tribunals is "a system of justice that does not comport with American values" and that we should scrap the entire thing. If by "American values," he means really recent ones where decisions turned on "what the meaning of 'is' is," maybe he's right; if so, then the military too has lost its moral compass (as we already knew about the State Department and its ugly offspring, the CIA).

Here is the situation, from what I can determine:

Under the recently enacted law, prisoners can only be tried at military tribunals if they are declared by a status-review tribunal to be "unlawful enemy combatants;"

The status of "unlawful enemy combatant" requires a number of criteria: A, B, C, D;

The earlier status-review tribunal determined that 80 of the 380 prisoners at Gitmo statisfied criteria A, B, C, and D; the other 300 or so did not;

But they used the term "enemy combatant" for those 80 prisoners, per the law they operated under, rather than "unlawful enemy combatant." The current law had not yet been written, and the status-review tribunals had no crystal ball: They did not realize they would have to have used a different term, after the original law was thrown out and rewritten by Congress;

...Therefore, all the cases must be dismissed for lack of jurisdiction!

This is a perfect example of mistaking the map for the territory; it's like sitting down in a fancy restaurant -- and devouring the menu! The label itself is irrelevant; you can call them "sunshine needlepoint combatants," so long as you require the same criteria as for "unlawful enemy combatants."

The law says that only those persons who are qualified to be designated as unlawful enemy combatants can be tried; the clear intent and substance of the law is not affected by whether the earlier tribunal used the same words as the later-enacted law, but by whether they used the same standards... and Judge Brownback should jolly well understand that.

All he needed to do was check that the criteria used by the earlier tribunals to declare someone an "enemy combatant" are the same as those that used today to declare someone an "unlawful enemy combatant." Maybe this is the non-lawyer in me; but it was utterly clear to everyone, including the detainees, that the entire purpose of the status-review tribunal was to determine whether they were bad enough to warrant trial by a military tribunal.

The detainees knew exactly what that meant: They knew that if they were found to be "enemy combatants," they would be tried by a military court. Now the defense argues -- and the judge, Army Col. Peter Brownback, seems to have independently argued himself into believing -- that the trivial difference in words violates the rights of the detainees, because they didn't know they were in jeopardy of trial if found to be enemy combatants... which was the very term used at the time to designate those detainees eligible for trial!

The idea is that, if someone doesn't know a hearing can result in him having to stand trial, he might not put up a vigorous defense; thus, he might be tricked into allowing himself to be (more or less) "indicted" without a fight. But for God's sake, everybody knew that was the purpose of the status-review hearings. Everybody. Both the detainees and their military lawyers knew. The tribunal itself knew. Even the media knew. Nobody was caught by surprise here.

Here's the analogy:

Suppose Congress passed a law saying that everyone who committed murder on federal property would be indicted as a "federal murder defendant;" those so designated could be tried in federal court; and those so designated, during their actual trials, could only use attorneys from a specific list generated by the Department of Justice.

While the Supreme Court hears the inevitable challenge to this, 80 people are indicted by the Justice Department as "federal murder defendants."

But the Supreme Court strikes down the original law, saying defendants must be allowed counsel of their choice at their actual trials after being indicted. Congress rewrites the law, saying everyone who committed murder on federal property would be indicted as a "federal homicide defendant;" and those so designated, during their actual trials, could use any dadburned attorneys they want.

But then, when the first trial comes up, the judge dismisses the charges because the defendant was designated a "federal murder defendant," while the law only allows trial for "federal homicide defendants." That's totally different! Charges dismissed.

This is a perfect example of why normal people hate and despise trial lawyers as a class.

I have a thought. I realize this may be somewhat radical, even crazy, but...

The status-review tribunals almost certainly used, as their standard, the very criteria now required for "unlawful enemy combatants" -- that was, after all, the entire purpose of the status-review tribunals; and the fact that they only applied the "enemy combatant" label to 20% of the prisoners makes clear it was a pretty strict standard.

So why doesn't -- now don't come after me with pitchforks and torches! -- why doesn't President Bush, as Commander in Chief, simply direct the tribunals to look at the casefiles of each of the 80 prisoners determined to be "enemy combatants," check to see that the standards required for that designation match those required for the new designation of "unlawful enemy combatant," and then just change the stupid label?

Problem solved? Oh, no, of course not; it would have to go back to the Supreme Court, wouldn't it? After all, the burning question we face anent these men is what label was used -- not what criteria were used for that label.

I'm starting to agree with Chief Defense Attorney Sullivan (a colonel in the United States Marine Corps, sadly): "[this ruling is] the latest demonstration that this newest system just does not work." Evidently, not even the military itself can put terrorists on trial without getting tangled in absurdist definitions and technicalities that have no relevance to the actual charges... or to fighting terrorism and defending the United States.

A federal judge has struck down a critical element of "connecting the dots" to fight against terrorism: she says it's unconstitutional to freeze assets of terrorist groups -- because terrorist groups are designated by the president, rather than by a laborious, multi-year process involving Congress and the judiciary, clerks and aides, and the entire labor force of the Bureau of Procrastination... during which multiple challenges could be filed, rulings made and overturned, written, published, discussed, stamped, mailed, folded, spindled, and mutilated, stretching the procedure out long enough to give the bad guys plenty of time (even at a snail's pace) to transfer all the funds to another dummy organization. Then we start all over again. (Though that's not exactly the way she phrased her opinion, I believe.)

A federal judge struck down President Bush's authority to designate groups as terrorists, saying his post-Sept. 11 executive order was unconstitutional and vague.

Some parts of the Sept. 24, 2001 order tagging 27 groups and individuals as "specially designated global terrorists" were too vague and could impinge on First Amendment rights of free association, U.S. District Judge Audrey Collins said.

The order gave the president "unfettered discretion" to label groups without giving them a way to challenge the designations, she said in a Nov. 21 ruling that was made public Tuesday.

The judge, who two years ago invalidated portions of the U.S. Patriot Act, rejected several sections of Bush's Executive Order 13224 and enjoined the government from blocking the assets of two foreign groups.

And here is the really shocking part: Judge Audrey Collins was appointed by -- wait for it -- President Bill Clinton! She was nominated in 1994 and confirmed by the Senate that same year, when it was still under the control of the Democrats.

Say, is there an echo in here?

The ruling was praised by David Cole, a lawyer for the Washington, D.C.-based Center for Constitutional Rights, who represented the plaintiff Humanitarian Law Project. [Never trust any D.C. based organization that includes the word "humanitarian" -- as in vegetarian? -- in its title.]

It "says that even in fighting terrorism the president cannot be given a blank check to blacklist anyone he considers a bad guy or a bad group and you can't imply guilt by association," Cole said.

Sure you can! You aren't really trying, Mr. Cole. How about, "anyone who joins the Ku Klux Klan is guilty of racism?" Or this one: "anyone who joined any version of the Nazi Party after 1945 is a nutter who should be on a leash."

Similarly, I consider it quite reasonable to argue that anyone who joins al-Qaeda in Iraq is more or less a terrorist by definition (and an antisemite by hobby). And any fellow who joins a group called the Humanitarian Law Project is a screaming liberal guilty of utter jackassery... though that last might be more of a genetic disability than a guilty act: every mens rea first requires a rea, after all.

All right, I love picking on idiot rulings by Clinton judges; but there really is a deep point. I'm actually going somewhere with this.

The incoming Democratic majority insists that its primary interest, after raising the minimum wage, is defending the country. It's not your grandmother's Democratic Party -- no more of those anti-war protests, assaults on returning soldiers, bombings of ROTC buildings, attempts to exorcise Yog Sothoth from the center of the Pentagon, or concerned citizens against America chaining themselves to MX missiles. Not this Democratic Party! This is the steely-eyed party of John Murtha, Jim Webb, and Nancy Pelosi; of John McCain (oops, sorry about that), Harry Reid, and Joe Lieberman (oops, sorry about that).

And of course, everyone knows that terrorism travels on its stomach, to paraphrase Napoleon (which is about the only way to discuss what he said, unless you read French). The surest method of killing terrorism is to starve it out, cut off its funding.

Cut its funding by, you know, freezing its assets. Which raises an interesting question: are the Democrats actually in favor of cutting funding to terrorist groups -- hence will denounce this narcissistic, self-indulgent, flower-child, airy-fairy opinion?

Or will they remain true to their roots (and their BDS fix) and praise this decision as the first step in undoing all the horrible depredations against the precious civil liberties of Jemaah Islamiyah and the Tamil Tigers?

Alternatively, if you ask the Democrats, will smoke come out of their ears, as they intone in rising hysteria, "Norman, please explain -- only Norman can explain!" Sorry. Got caught up in a Star Trek moment; Captain Ed understands.

Most likely they'll take the fourth option, the one they've taken so often, it's on speed dial: say nothing. No comment. If a reporter is rude enough to ask Ms. Pelosi about this ruling, she can look blank and say that the 9/11 Commission already determined that there is no al-Qaeda.

Be thankful that President Bush is still president for a couple of years, and let's all hope that 2008 doesn't leave another coal in the electoral sock.

Money - It's a Crime... (Clinton Judges, Take 1)

The government discriminates against blind people by printing money that all looks and feels the same, a federal judge said Tuesday in a ruling that could change the face of American currency.

U.S. District Judge James Robertson ordered the Treasury Department to come up with ways for the blind to tell bills apart. He said he wouldn't tell officials how to fix the problem, but he ordered them to begin working on it.

The American Council of the Blind has proposed several options, including printing bills of differing sizes, adding embossed dots or foil to the paper or using raised ink.

And here's a shocker: Judge James Robertson was appointed by -- wait for it -- President Bill Clinton! He was nominated in 1994 and approved that same year, when Democrats still controlled the White House, the Senate, and the House (which evidently didn't violate the "separation of powers" doctrine and wasn't the sign of a looming "unitary executive" -- as it was during the time that Republicans controlled all three branches).

So what is wrong with this picture? Simply this: Judge Robertson evidently believes that if a person has a disability, then it is the duty of society at large (which means the taxpayers) to reinvent itself in order to "reenable" him, to make him whole. In other words, if Joe is blind, it is society's duty to completely compensate for his blindness... to make blindness utterly non-disabling.

Because otherwise, society is discriminating against Joe by not compensating him for his own handicap. They are violating the equal-protection clause of the 14th Amendment and the Americans with Disabilities Act of Blob Dole.

In the march of risible court decisions, whose lineage is as long as Adam's and Eve's, this may perhaps be the most asinine in court history. Now there's a record to inspire awe!

By the same reasoning, every public library in the country discriminates against blind people unless it carries a Braille copy of every single book in the collection. And every CD is discriminatory unless the complete score and lyrics of all songs are printed somewhere on the jewel case (preferably also in Braille, if we don't want to discriminate against people who are both deaf and blind!)

Or maybe this only applies to government facilities and programs. Fair enough; I accept the limitation. But at some point, the Grand Canyon must install loudspeakers permanently droning on, as they describe the view from every scenic outlook, for the benefit of blind tourists.

And those funny chirps and yelps that the pedestrian crosswalk lights emit to tell blind walkers when to cross are good but not enough: hasn't anybody given a thought to the poor, beleagured, and discriminated against blind drivers? The traffic signals themselves should scream out their current color -- in every language that the local community employs to print government forms. Heavens, man! On your feet!

Naturally, every house must be retrofitted with a flashing indoor warning light that illuminates every room with a hellish glow in the event the air-raid sirens blow... else how will the deaf know to duck and cover?

Speaking (or signing) of which, don't public concerts in the city park violate somebody's right not to be inconvenienced in any way by his own deafness? Either stop them or supply earplugs to the hearing unimpaired so all will be equally unable to enjoy Beethoven's Ninth Symphony -- or at least enjoy it no better than he himself could.

And what about public auctions of property seized from drug dealers... how can the mute bid on the Ferraris and cigarette boats the DEA has cluttering up their warehouses? I suppose they could wave their hands to signal a bid. Unless they're blind, in which case they won't know how much money they have.

We needn't even get into the Boston and L.A. marathons; sure, the wheelchair bound can run (well, roll) in them... but it's nearly impossible for them to win! What an inconvenience. Next Thursday, I understand Judge Robertson will issue a preliminary ruling (in the case of Harrison Bergeron v. the People) that henceforth, all able-bodied marathon runners will be required to carry weights, like jockeys, just to even things up.

And now we come to the pizza resistance, the clowning glory: I've noticed that when I fill out my income tax return, it taxes my brain quite a bit to follow those labyrinthian instructions on the back of each form. It's a good thing I'm smart and literate. But many Americans -- some of them people of color! -- are neither smarter than the average nor particularly good at reading legalese. (In fact, I read somewhere that as much as half the population is below median IQ. I'm sorry, I can't find the citation.)

Clearly this goes far beyond a disadvantage: there are actual measurable damages here, as these people cannot fill out their own tax returns and must hire CPAs or lawyers to do it for them. Ouch!

Now, one way to resolve this problem is for Judge Robertson to order the IRS to make their forms simple enough that even a simpleton can fill them out. But this doesn't completely solve the problem, as many people fall below the medical community's precise measurement of simpletonhood. Ness. Hood. Whatevery.

Besides, it's clearly beyond the purview of the courts to order the IRS to do its job.

Since there is no way to raise every (I'm reading the official categories in order of increasing dumbth) moron, dolt, bonehead, cementhead, halfwit, lackwit, numbskull, vacuum brain, microcephalic, and Katzenjammer up to the level of smarties, the only alternative is to lower the rest of society down to the level of the lunkheaded.

Judge Robertson has already been considering possibilities, including the forced watching of Gilligan's Island reruns interspersed around the Best Boy's cut of An Inconvenient Truth. But the judge indicates he would leave up to Congress which particular season of the sitcom, as the federal judiciary must not overstep its jurisdiction.

Speaking of inconvenient truths, here's one: disabled people are not as able as able-bodied people. That's more or less the definition of "disabled."

Thus, there are some things they simply cannot do, or at least not do as well as others. Of course, I can't dance like Fred Astaire or play baseball as well as Fidel Castro (in his youth; I could probably hold my own today)... so there are compensations. Try as the courts might, I'm skeptical they will be able to make everybody in the country equal in ability to everybody else; they can, however, succeed in making us all equally poor and equally miserable. In fact, they're well underway along this road already.

Instead of trying to equalize everybody's experience of life, perhaps they should focus on ensuring that everybody, including the white male Christian, has equal justice before the court and under the law, and around the bend, over the rainbow, and through the woods to Grandmother's house.

Heck, that should be hard enough, what with the whole OJ Simpson/Robert Blake phenomenon.

November 16, 2006

Rogan, Great Guy, Would Be a Great Judge

I'm late noting that President Bush just nominated former Rep. James Rogan for a federal district-court judgeship in California. He won't be confirmed -- but he should be.

Sen. Hillary Clinton (D-NY, 100%) will blue-slip him; if it must be a home-state senator, she'll get Sen. Barbara Boxer (D-CA, 100%) or Sen. Dianne Feinstein (D-CA, 95%) to do it. You see, Rogan was one of the House Impeachment Manglers in 1998... and one way or another, there'll be "hell to pay." He will never even be given a vote; Sen. Pat Leahy (D-VT, 100%), incoming Chairman of the Senate Judiciary Committee, might not even allow him a hearing in the committee (by just refusing to bring him up).

But that's not why I'm writing this. There are a bunch of district- and circus-court nominees who will never get up or down votes, but I usually leave blogging about them to brilliant lawyers like Patterico and the greats at Power Line.

I'm writing this for one reason, a very personal reason to hold James Rogan in the highest esteem: I am convinced that, were it not for him, my wife, Sachi, would not be an American citizen today.

I've written about this before; the INS's capriciousness and thuggishness is one reason I get very angry at people who say that anyone who has ever entered this country illegally is a "criminal" who should be "prosecuted" and forever barred citizenship.

First, I want to make one thing perfectly clear: Sachi was never illegal; she came here legally as a student for one year -- then she went back to Japan. A year later, she returned, this time as an immigrant. She was able to get a green card and was satisfied with that for a number of years.

We skip to the 1990s. When Sachi and I started going together, she told me that, although she was born in Japan and grew up there, living in Japan until she was about 20, she had never really felt Japanese; she always felt like "a stranger, and afraid, trapped in a world I never made," as A.E. Houseman put it.

When she came here first as a student, she abruptly realized she had always been an American. And when she returned to Japan, it hit her that she could no longer live in the land of her birth; she had outgrown it. (She actually outgrew it years earlier, but she couldn't diagnose the feeling then.)

"All right," I asked, "so you've been living here for years now as a legal permanent resident. Why haven't you become an American citizen?"

That brought her up cold: it's a very, very hard thing to become a citizen of a new country, because that requires you to publicly renounce citizenship in your native country. She had been scared what her parents would think, what her ancestors would think, and -- well, it's a scary step. But she realized she couldn't continue living as "half an American" merely out of fear. So she embarked upon the journey to citizenship.

I've talked about that dreadful experience many times, and I won't go into it again here. Except for one part of it -- which you can take as exemplifying the whole. At the very end, Sachi had satisfied all the requirements, passed all the tests, filled out all the forms, waited years and years, battled her way to the head of the line, and all completely legally. She only needed one more step to actually become a citizen: to hold her hand up and be sworn in (I usually say "be sworn at," but I'm not trying to be a joker today).

All she needed was an appointment. At those appointments, held at some federal building in the area, about two hundred people at a time are sworn in; it's not like there are no slots. But the INS (this was before they became the USCIS) would not give Sachi her appointment.

Nor did they give her a reason. Rather, they said there was no reason, she was good to go. But they wouldn't let her go!

For months, she called nearly every day; for months, they told her that "the system" hadn't spit out a date for her yet. Then the months became years... literally years. Every so often during this time, some document she had filled out before "expired," forcing her to come in and fill it out all over again. The kicker was when she was told that her fingerprints had expired, and she would have to get a new set taken.

Oddly enough, they looked just the same.

But still -- no appointment. She got a lawyer, and the lawyer couldn't get the INS either to budge or to say if there were some problem: she had never been in any trouble (not even a ticket), there was no reason. Even the INS insisted there was no reason; but they had "submitted" her case to "the system," and nobody had any idea what was happening. Nor did they care; they just told her to shut up and go away, she was holding up the line.

Finally, somebody -- I don't remember who, but it was probably Friend Lee -- suggested to me that we should contact Sachi's congressman, who was also Friend Lee's congressman. So we went to the office of Rep. James Rogan.

He personally wasn't there (Congress was in session); but his staffer talked to Sachi, took down all the information, and said that Rogan would have the case in his hands within two weeks. In fact, I think it was less than that before we received a phone call from the staffer, who said that Rep. Rogan had called the INS during a break from floor action, kicked some butt -- and we would be hearing from them within a couple of days.

A few (working) days later, Sachi received a letter giving her an appointment to go down and (all right, all right!) get sworn at by a federal magistrate.

Think about that: for more than three years, Sachi and I were unable to get her a swearing-ceremony date, even though the INS admitted that she had satisfied all requirements; but less than three weeks after contacting James Rogan, she had her date. I am utterly convinced that, were it not for his intervention, the INS would never have moved... because when it comes right down to it, they just don't care.

But James Rogan did care -- and that's why he made a great legislator, a great House manager during the impeachment, and would make a great federal judge, though he'll never get a chance at the latter due to Hillary's essentially vengeful and narcissistic nature.

Oh, there is one thing he didn't care about: nobody at his office ever asked Sachi whether she considered herself a Republican or a Democrat. She was a constituent; that was enough.

September 13, 2006

Essential Activism

Injudicious Judiciary

Hatched by Dafydd

Patterico has the most extraordinary ability to generate fascinating discussion of legal issues on his marvelous blog, Patterico's Pontifications; if you're not reading it regularly, you're missing half the picture of any subject he covers.

That isn't to say I always agree with him, however. But the debate uniformly stimulates, forcing me to stretch my little gray cells (mine are actually mauve, for some unaccountable reason) to their limit. Yesterday, he posted on judicial activism, which he's absolutely agin'. In the comments, I opined:

Like jury nullification, 99% of the time and more, judicial nullification is a wretched idea; either it’s in a bad cause, or the unintended consequences are worse than the original problem.

But in a tiny percent of cases, it’s vital. Had the Court not ruled in what I consider a judicially active way in Brown [v. Board of Education], we would still have legalized segregation today in many parts of the United States, with all its evils, ills, and inequalities.

The problem is that those who support judicial (and jury) nullification wildly overuse it. Rather than being the “nuclear hand grenade” it actually is (50-foot throwing range, 5-mile blast radius), they treat it as a routine arrow in the quiver of abstract justice.

(There's more, but it's just my usual blather and can safely be ignored.)

Patterico, prodded by another commenter, took exception to my claim that Brown was an example of judicial activism, good, bad, or indifferent. In an emendation to the post, he argued:

UPDATE: A commenter reminds me that Brown v. Board of Education did not explicitly overrule Plessy. Rather, it evaded the clear holding of Plessy through dubious social science.

I still demur, and the rest of this tedious exercise in pedantry, in which I once again play sea-lawyer with my betters, follows when one slithers on through to the other side...

Patterico's source for rejecting the "activist" label for Brown is Ed Whelan's article on NRO, the first one Patterico cites. Patterico sums up thus:

Brown was an activist case in reasoning, but not in result -- because the result was proper, and could have been reached through a proper application of originalism.

To me, this is nonsense. Here is that "proper application of originalism" from the Whelan piece:

Under an alternative originalist approach, as Judge Bork and others have argued, even if the ratifiers of the Fourteenth Amendment assumed that segregated public schools were consistent with equality, objective comparisons of facilities and resources had, by the time of Brown, long since disproved this assumption. Under this approach, an originalist opinion in Brown would therefore have concluded that the Fourteenth Amendment's clear purpose of establishing racial equality under the law required an end to segregated schooling.

Boiled down, this argument reads, "even if the framers believed that equality could still be achieved with segregation, thus did not intend the amendment to outlaw all segregation, we now know that they were wrong!"

To call this "originalism" is utter sophistry. To say "sure, the framers of the amendment thought X; but since we now know they're wrong, we'll say Y instead" is the very essence of judicial activism, indistinguishable from the "reasoning" in Roe.

Here's the proof: suppose a state had set up a segregated school system in which the white and the black schools were thoroughly and demonstrably equal in quality, the way men's- and women's-only institutions often are. Would that violate the guarantee of "equal protection of the laws?" How?

The conclusion that such equality is impossible under segregation is a perfectly valid conclusion. But it's a policy choice; and under originalism, such policy choices should be made by Congress (or the state legislatures, in this case), not by the Court.

This is hand-waving of the worst sort: because we all agree (today) that segregation doesn't work, we redefine originalism to include the argument that if the Framers believed something that we now believe was wrong, it's still within the originalist meaning to correct their factual error via the judiciary.

And we do it for no other reason than to claim Brown as an "originalist" decision... because to think otherwise would be bad news for originalist absolutists. It's true because it would be dreadful if it were false.

A Roe-ista would argue, with equal logic, that the Framers clearly erred in thinking that a zygote is a human person; we now know it's not a person until the Xth week of pregnancy... so we'll correct their factual error by enshrining our modern understanding into a Court ruling.

If one is activist, so is the other.

But Whelan makes another argument; he says that indeed, the framers of the Fourteenth Amendment really intended full desegretation all along; they just inadvertently forgot to spell it out in the amendment language.

Let's take the first part. His evidence of their intent is thus:

Further, as McConnell's law-review article shows, in the years immediately following ratification of the Fourteenth Amendment, as Congress acted to enact legislation enforcing the requirements of the Fourteenth Amendment, a substantial majority of both houses of Congress repeatedly voted to abolish segregation in the public schools.

All right. A "substantial majority." But was it 2/3rds, the number required to submit an amendment to the states?

Would 2/3rds have voted for an amendment that explicitly banned segregation? Would 3/4ths of the 37 states then present in the Union -- not even taking coercion into account -- have ratified such a desegregation amendment, given that segregation was not confined to the South?

Would such an amendment, explicitly banning segregation, have been ratified by Ohio, New Jersey, and Oregon, each of which subsequently tried to withdraw ratification of even the version actually submitted? How about Indiana, Minnesota, Kansas, and Wisconsin?

How about West Virginia and Maine? Pennsylvania? None of these states had rebelled; thus none was occupied by federal troops, and none had to ratify the amendment in order to be readmitted to the Union: there was no handy federal lever to coerce any of them. [Per commenter Xrlq, I made a couple of state corrections in this paragraph.]

And would the occupied states have actually agreed to complete desegretation in the mid-19th century, even being a condition of readmission? Or would the legislatures have said "forget it?"

We'll never know, because the framers saw fit not to include such explicit language in the amendment. If they believed in desegregation themselves, they evidently decided discretion was the better part of abolition and chose not to say so in the bills (likely because they knew the amendment would then fail).

Sorry, but I consider Whelan's argument feeble. I think we all accept that any explicit reference to federally mandated desegregation across the land would have horribly complicated passage of the Fourteenth Amendment: which means that some of those voting in Congress and in state legislatures did not, in fact, share the understanding that "equal protection of the laws" was a euphemism for banning all segregation nationwide.

If originalism means interpreting statutes and clauses according to the commonly understood meaning of the words at the time they were adopted, then you cannot stretch it to include meanings that require a secret decoder ring, which some framers had but others didn't.

Brown v. Board of Education was an activist ruling in both reasoning and result... but one of the very, very rare good ones.

August 17, 2006

Anna Katherine Diggs Deep

"The game is afoot," as Sherlock Holmes said. (Oh yes he did; in "the Adventure of the Abbey Grange," for example.)

The first federal judge has struck down President Bush's NSA al-Qaeda intercept program as an unconstitutional violation of the First Amendment. Anna Katherine Johnston Diggs Taylor ruled for the plaintiff in a lawsuit filed by the American Civil Liberties Union:

The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, monitoring phone calls and e-mails between people in the U.S. and people in other countries when a link to terrorism is suspected.

I can only suppose that the ACLU's argument is similar to the well-known constitutional doctrine that police may not tail a reporter they believe may be meeting with a wanted serial killer for for purpose of writing a book about him, as the police action might make it more difficult in future for that reporter to arrange interviews with other wanted felons.

The White House reacted quickly and predictably. Tony Snow said:

"United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives," he said. "The program is carefully administered and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected al-Qaida or affiliated terrorist."

The ACLU reacted quickly and predictably. Anthony Romero said:

"At its core, today's ruling addresses the abuse of presidential power and reaffirms the system of checks and balances that's necessary to our democracy," ACLU executive director Anthony Romero told reporters after the ruling.

He called the opinion "another nail in the coffin in the Bush administration's legal strategy in the war on terror."

Thank God for the Associated Press, or we would never guess how each party viewed the decision.

Interestingly, Judge Taylor was not appointed by Bill Clinton.

She was appointed by Jimmy Carter in 1979 (type Taylor,Anna in the text box and click Go, then click on her name when it pops up). Thus, her decision was not only quick but also predictable.

Having such a high predictability factor makes the decision itself meaningless -- except as a starter's gun to tell us that the game... but I repeat myself.

I see this as more grist for my argument that it would indeed matter tremendously whether a Democrat or a Republican is elected president in 2008: even if their foreign policy goals would be more or less the same, I believe Democrats are allergic to decisive presidential authority in the collection of intelligence information on our enemies, when that requires tapping phones within the U.S., and its dissemination to the military (or even law enforcement), when that requires breaching Gorelick's Wall.

Since I also believe that Congress and the courts are lagging indicators in the war against jihadi terrorism, and that we can only win with robust use of the military authority of the executive branch, I conclude that electing a Democrat in 2008 would have profoundly bad consequences in the war -- as in, we would be much more likely to lose, or at least suffer terrible attacks that dwarf 9/11, while en route to the next Republican president.

Taylor's decision is not the final word, of course; we always knew this would eventually be decided by the Supreme Court. The next step will be a stay of the judge's order pending review by a circus court; then that court's decision will be stayed pending review by the Supreme Court (which will definitely accept the writ of certiorari).

As John Hinderaker of Power Line has pointed out in a number of posts, Judge Taylor's decision flies in the face of repeated rulings by various federal appellate courts, including the FISA court so much beloved by the Democrats -- today, that is, when they fantasize it might stand in Bush's way while he tries to defend the nation. Those rulings held uniformly that the president does indeed have such broad authority. More than likely, the Sixth Circuit will overturn Judge Taylor's decision, and it will be the ACLU that files for Supreme Court review.

But let's keep a sharp weather eye on this case; or, to quote Mr. Holmes once more, in an analogous context, "I have investigated many crimes, but I have never yet seen one which was committed by a flying creature."

July 25, 2006

Of Course You Know - This Means War!

Congressional Calamities
, Injudicious Judiciary

Hatched by Dafydd

None of the other blogs I read regularly are talking about this, but I think it's funny as all get out: Sen. Arlen Specter (R-PA, 63%) is planning to sue George W. Bush in federal court to get Bush's signing statements declared unconstitutional:

A powerful Republican committee chairman who has led the fight against President Bush's signing statements said Monday he would have a bill ready by the end of the week allowing Congress to sue him in federal court.[Big Lizards presumes that the bill allows Congress to sue Bush -- not Specter. English is a second language to AP. -- the Mgt.]

"We will submit legislation to the United States Senate which will...authorize the Congress to undertake judicial review of those signing statements with the view to having the president's acts declared unconstitutional," Judiciary Committee Chairman Arlen Specter, R-Pa., said on the Senate floor.

Say... wouldn't that bill have to be signed by the president to become law? He could use his second veto right here! Or perhaps he will sign the Specter Act... with a signing statement saying Arlen is full of beans.

There hasn't been even a single case where Bush, relying upon a signing statement, has refused to enforce a law, of course. This is so hypothetical, it's a ghost of a clone of a unicorn. I have no clue what Specter thinks the courts will be deciding: will he focus on one signing statement in particular -- say the one accompanying the Patriot Act? Or will he ask the courts to rule on the general idea of scribbling something in the margin of a piece of paper that the president signs?

I'd love to hear the argument: "Your Honor, a case where a signing statement actually ended up meaning something has never come up, but we'd really like you to waste a few months of your idle hours to hear the whole trial -- in case it ever becomes relevant in the future!" Yes sir, there is nothing judges enjoy more than completely frivolous and unnecessary litigation in their courtrooms.

At least Specter knows where to find his friends:

Specter's announcement came the same day that an American Bar Association task force concluded that by attaching conditions to legislation, the president has sidestepped his constitutional duty to either sign a bill, veto it, or take no action....[I don't know about you folks, but it looks to me as if a "signing statement" indicates that he signed it.]

"That non-veto hamstrings Congress because Congress cannot respond to a signing statement," said ABA president Michael Greco. The practice, he added "is harming the separation of powers."

Maybe somebody can explain to me (a) why Congress "cannot respond" -- they can pass a "sense of the Congress" resolution any time the mad desire o'ertakes them -- or (b) how this affects the "separation of powers," considering that the president is signing a bill passed by Congress, and the courts will interpret that bill. Three branches, three powers, no waiting.

Still, it's good to know that Specter is not resting on his laurels, after his grueling crusade to prevent large numbers of the president's judicial nominees from even coming up for air within the Judiciary Committee.

July 20, 2006

Haynes On the Outside, Haynes On the Inside

Congressional Calamities
, Injudicious Judiciary

Hatched by Dafydd

WARNING:I know absolutely nothing about this subject. And while that has never stopped me before, and doesn't stop me this time either, you might want to bear it in mind before commencing the reading process.

The Republican Party is in a lather over the nomination of William J. "Jim" Haynes II to the 4th Circus Court of Appeals: sometime Republican Sen. Lindsay Graham (R-SC, 96% -- but that was back in 2005) is fighting tooth and hammer to stop Haynes from getting on the court... or even getting an up-or-down vote.

From what I can gather, Graham is crusading on the rather dubious premise that Haynes, as General Counsel of the Department of Defense, put together a memo of interrogation techniques allowed to be used on terrorists held in Guantánamo. The memo was run past the Judge Advocate General (JAG) corps, which objected to some of the methods. The objections were for the most part accepted, and the revised list was sent to Secretary of Defense Donald Rumsfeld. All of which, according to Sen. Graham, amounts to dissing Graham's beloved JAGs.

Don't worry, I didn't follow it either, and I wrote it.

But for some reason -- whether it's this stupid excuse or because Graham is serving as an errand boy for Sen. John McCain (R-AZ, 72%) -- Graham is pulling out all the slops to squash Haynes like a bug. So why would McCain have such a bee up his britches about Haynes? Possibly because McCain is hypersensitive about any variety of harsh interrogation techniques, for reasons that should be obvious (though it's not obvious why American interrogators speaking harshly to Ramzi Binalshibh should remind Sen. McCain of the Hanoi Hilton).

The problem is that Sen. Graham has an extraordinary amount of clout on this nomination, possibly because he's one of the senators from South Carolina... which just happens to be contained within the jurisdiction of the 4th United States Circuit Court of Appeals, to which Haynes is nominated.

The Senate has always given individual senators amazing leeway to stymie the judicial nomination process (and the legislative process, for that matter). Under some obscure Senate ukase -- which I believe dates back to Pippin the Middle, whose illegitimate son, Charles Martel, defeated the Moslems at the Battle of Tours in A.D. 732, founded the Carolingian dynasty, and incidentally invented Reese's Peanut Butter Cups -- any senator can simply fail to return a "blue slip" for any federal judge nominated to the senator's state, and that judge is blocked.

Now I don't think "blue slips" have ever been used to block nominees to the Court of Appeals; it's the most unheard-of thing I've ever heard of. But evidently, even without threatening an actual blue-slip block, Graham's opinion is being given inordinate weight.

"Hey," say the other senators, "he's from South Carolina, so he must know more than the rest of us do about a nominee who might end up serving on the Appellate Court that serves South Carolina" -- even though Haynes himself is from Texas (Fifth Circuit). Makes sense to me.

So the obvious, outside-the-box solution from Big Lizards would ordinarily be for President Bush to short-circuit (sorry) the problem by withdrawing Haynes from his Fourth-Circuit nomination (and Graham's clutches) and nominating him to some other circuit, one that doesn't have an insane person serving as senator.

But are there any such open circuits available? As we look, using our two criteria -- a vacancy on the court, and none of the states in its jurisdiction having a madman for a senator -- we rapidly run out of circuits.

Highly self-explanatory map of numbered U.S. Circuit Courts of Appeal

There are eleven numbered circuits that correspond to clumps of states, plus a couple of wild cards; here is the list, along with any potential nutcases who could torpedo the whole scheme. Remember: the percent following a Republican senator's name is a measure of how "Republican" he is; while following a Democratic senator's name, it's a measure of how "Democratic" he is:

For the First Circuit, you have to contend with Sens. Kennedy (D-MA, 95%) and Kerry (D-MA, 100%) of Massachusetts and Sens. Snowe (R-ME, 32%) and Collins (R-ME, 32%) from Maine. Besides, there are no vacancies;

For the Second, you're stuck with Sen. Hillary Clinton (D-NY, 100%). It has a judicial vacancy, but Bush has already chosen a nominee. Not that it matters... I mean, Sen. Clinton?

In the Third, we have a vacancy, and there's not even a nominee pending! Unfortunately, we also have Sen. "Slow" Joe Biden (D-DE, 100%)... 'nuff said;

The Fourth takes the Fifth, since that's what he's already nominated for;

The Fifth would actually be somewhat appealing (sorry), as the only iffy senator in Louisiana, Mississippi, and Texas is Sen. Trent Lott (R-MS, 91%) -- and only because he might still be nursing a grudge against President George W. Bush for helping nudzh Lott out the door of his Majority Leadership. The other five senators are relatively sane, even the lone Democrat, Mary Landrieu (D-LA, 95%).

Alas, the only vacancy is for an "opinion specialist," whatever the Sam Houston that is (please note the local color in Big Lizards choice of expressions, dadburn it). The longhorn and the shorthorn is that there are no judicial vacancies on this circuit court;

The Sixth is larded up with Sens. Carl Levin (D-MI, 100%) and Debbie Stabenow (D-MI, 100%), who have already played these reindeer games with a wig of judges nominated for Michigan, including Henry Saad. Two vacancies, two pending nominees;

The Seventh is infested with Sens. Durbin (D-IL, 100%), Obama (D-IL, 100%), and Feingold (D-WI, 100%). Need one say more? Besides, no room at the inn;

The Tenth Circuit doesn't have a senator problem; however, it's probably already a strongly conservative court... so adding Haynes to the roster probably wouldn't do much good. Both vacancies have nominees already;

How about the Eleventh? Alas, that has Bill Nelson (D-FL, 80%); although he's running for reelection, it looks as though his opponent will be Katherine Harris. Harris did yeoman work as the Secretary of State in 2000, preventing Al Gore from stealing the election the easy way: by cheating on the ballots. (Gore was forced to try to steal it the hard way, suing his way into the White House; fortunately, that was more than he could chew, and he remains Citizen Gore). Harris, however, gives Nelson no challenge at all... thus no need for Nelson to try to placate the Right by letting Haynes be nominated to that circuit. Even if there were any vacancies, which there aren't.

We ignore the goofy U.S. Court of Appeals for the Federal Circuit; we don't need Jim Haynes poring over 2,773-page patent application legal briefs.

So you see the problem.

Which bringes us to the DC Circuit, which might be politic (sorry), as no senator can claim to have an especial affinity for Washington D.C., since that's where they all live during the 18 or 19 days the Senate is in session each year.

There are two vacancies on the DC circuit, but the White House has only nominated one replacement. Aha. Since the DC Circuit is very influential, it's a good spot to put a solidly consertative judge (having a conservative judicial philosophy, not in terms of how he votes on election day).

However, now that I think about it, there is a huge problem associated with renominating William J. Haynes II, or any other judicial nominee, to a different circuit court: he would have to start the process all over again... including testimony before the Senate Judiciary Committee (the J-Com) -- which is just where he is now anyway!

This would give all his enemies the chance to re-interrogate him like a T-man grilling one of Frank Nitty's boys. (Or like a Ballpark Frank, which plumps when you cook it, finally splitting its sides if you keep it on the hotseat too long.)

Unfortunately, this brings us right back where we started: Haynes is the nominee to the Fourth Circus Court of Appeals, and that's where he has to stay. This box has no "outside" to it, and this entire post has been nothing but a colossal waste of your time.

July 11, 2006

Article 3

So today's media-driven episode of Bush Derangement Syndrome is the fallacious claim that, in some dramatic turnaround, the Bush administration now finally "admits" that terrorists are prisoners of war, entitled to the full protection of the Geneva Conventions as POWs -- including the right never to be interrogated. For example:

The Bush administration, called to account by Congress after the Supreme Court blocked military tribunals, said Tuesday all detainees at Guantanamo Bay and in U.S. military custody everywhere are entitled to protections under the Geneva Conventions....

The policy, described in a memo by Deputy Defense Secretary Gordon England, appears to change the administration's earlier insistence that the detainees are not prisoners of war and thus not subject to the Geneva protections.

The Pentagon acknowledged for the first time that all detainees held by the U.S. military are covered by the protections of an article of the Geneva Conventions that bars inhumane treatment, according to a memo made public on Tuesday.

The Bush administration called today for Congress to fix, rather than scrap, the system of military tribunals that was struck down by the Supreme Court last month, while the Pentagon pledged to treat detainees in accordance with the Geneva Conventions as the court required.

But as Ryan Sager [whoops, make that Jed Babbin... sorry, Jed!] at Real Clear Politics noted (I thought the same thing, but Babbin was there first), this is being completely -- and I (not Babbin) claim deliberately and with malice aforethought -- misreported by the antique media... because in fact, Deputy Defense Secretary Gordon England, who wrote the memo on July 7th, did not make any "shift" in U.S. policy; he quite openly proclaimed that this has been administration policy from the beginning: to apply specific elements of Article 3 to detainees in the war against jihadi terrorism.

There is certainly a danger, which Big Lizards recognized earlier, that subsequent and iterative federal court rulings may lunge further than the Hamdan decision and try to declare the detainees full-blown "prisoners of war." In fact, it appears that Justice John Paul Stevens, leading the pack of braying liberals on the Court, tried to do exactly that. If this happens, it will have catastrophic results in the GWOT.

But that is not what this memo does.

So we don't proceed in a vacuum, here is the relevant text:

The Supreme Court has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.

It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 and, therefore, actions by DoD personnel that comply with such issuances would comply with the standards of Common Article 3. For example, the following are consistent with the standards of Common Article 3: U.S. Army Field Manual 34-52, “Intelligence Interrogation,” September 28, 1992; DoD directive 3115.09, “DoD Intelligence Interrogation, Detainee Debriefings and Tactical Questioning,” November 3, 2005; DoD Directive 2311.01E, “DoD Law of War Program,” May 9, 2006; and DoD Instruction 2310.08E, “Medical Program Support for Detainee Operations,” June 6, 2006. In addition, you will recall the President’s prior directive that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.

You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices, and procedures under your purview to ensure that they comply with the standards of Common Article 3.

This is followed by a quotation of Article 3 of the 1947 conventions, which you may read for yourself here.

The most relevant sentence in the entire memo is the first sentence of the second paragraph, in which England makes plain that the administration's position is that currently existing DoD procedures already comply with Article 3; thus, except for the rules of military tribunals, there is no reason to change policy. Far from being a "big shift," England argues that this is what President Bush has been doing all along.

Note also how he answers the specific worry that Big Lizards enunciated earlier: that this ruling might lead to further rulings banning any interrogation at all of al-Qaeda "POWs," in accordance with other articles of the Geneva Conventions. For example, from Article 17 of those same conventions:

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

If the courts were ever to rule that terrorist detainees were to be given all the rights and privileges of POWs, then Article 17 would apply -- and all interrogation of al-Qaeda detainees of any kind would have to cease the moment the detainee said "I refuse to answer." Instead, all we would be allowed to insist upon was his "surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information."

In England's memo, he makes as crystal the administration's position that detainees are not "prisoners of war." The AP story is flatly wrong. If, as AP claims, the memo "appears to change the administration's earlier insistence that the detainees are not prisoners of war and thus not subject to the Geneva protections," then how does AP read the next sentence in the second paragraph -- where England specifically notes that the DoD's policies anent "Intelligence Interrogations" are legal?

In addition, Article 21 begins thus:

The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary.

That means, I believe, that they cannot be held in separate cages or prevented from assembling together and speaking privately -- as we currently do at Guantánamo Bay and likely every other terrorist detainment facility we operate. Again, if the courts started holding that terrorists were POWs, we would have to release them internally within Guantánamo to roam around freely within the camp, conspire together, and coordinate false answers to intelligence interrogations we wouldn't be allowed to conduct in the first place.

You cannot in the same breath say that al-Qaeda detainees are "prisoners of war" and also that we can engage in lengthy interrogations of them, treat them harshly to break them down, and deprive them of privileges if they don't answer or if they lie. There is no rational way that the reporters for the elite media could possibly have read the memo and actually come away with the misunderstanding that from now on, terrorists were POWs. Thus, any reporter who says such a thing is simply lying, as is the editor who allows him to publish.

Some people argue we should "never attribute to malice what can adequately be explained by stupidity." But in many venues, the precise opposite is more true: never attribute to stupidity what can adequately be explained by malice.

Though it may comfort some to think so, reporters and editors at top media sources are not imbeciles. Bill Keller and Dean Baquey did not blow the NSA al-Qaeda intercept program and the terrorist-finance tracking program because they were ignorant; they, along with the reporters they edit, blew those programs (in the New York Times and the Los Angeles Times, respectively) because they hate those programs, they hate the war, they hate Bush, and they want America to lose.

Don't get me wrong, I do not question their patriotism; I nakedly say they have none. They hate Republicans and the president so intensely, it becomes an exquisite experience. It easily overwhelms whatever feeble love for country still remains after decades of relentless liberal brainwashing. As Churchill (Winston, not Ward) said, they swim in currents of hatred so strong, it sears their very souls.

So lying about some sort of flip-flop on the part of George W. Bush is a mere trifle, a bagatelle to the MSM. That's the one they do "twice on Sundays."

Thus, when you read the inevitable flood of stories sneering that Bush has surrendered, that he's been made to eat crow, that the administration has undertaken a "big shift," a turnaround, a 180 -- just bear in mind what you already know about the "lies and the lying liars who tell them" in the nation's newspapers, on television, and especially in the liberal blogs.

There is no policy change here: Deputy Defense Secretary Gordon England has simply reiterated that administration policy already complies with the specific demands of Geneva that apply to non-POWs... with the one exception of the specific procedures to be followed by the military tribunals.

July 7, 2006

Here's a Switch --

Elections
, Injudicious Judiciary
, Politics - National

Hatched by Dafydd

UPDATE AND BUMP: See bottom of post.

In a bizarre twist of politics, the Democrats are fighting like the dickens over Rep. Tom DeLay... to keep him on the ballot in Texas, rather than to boot him off. The theory -- and I think it's so transparent, it's going to create blowback -- is that with DeLay's "ethical" problems (i.e., he incurred the wrath of notoriously vindictive and partisan D.A. Ronnie Earle), having DeLay's name on the ballot will so turn off Texas voters, that they'll vote for the Democrat in a strongly Republican district.

I suppose it could work... if, as Democrats believe, Texas voters are all as dumb as a box of bratwurst. Otherwise, they will easily be able to figure out just what the Democrats are up to.

Indicted former U.S. Rep. Tom DeLay must stay on the November congressional ballot despite withdrawing from the race, a federal court ruled on Thursday in a decision that could help Democrats win this key seat.

Texas Republicans quickly responded they would appeal the decision by the U.S. court in Austin, Texas, for the right to choose another Republican to run against Democrat Nick Lampson. The seat is crucial to Democratic hopes to pick up the 15 seats needed to regain control of the House of Representatives.

Well, then I can confidently predict that those "hopes" will be dashed: I have nigh religious faith that Texans are not the bunch of slope-browed, eye-ridged, knuckle-dragging, drooling, cousin-marrying, dimwitted, bone-headed ceeement-heads with an extra chromosome that Ronnie Earle and his Democratic chums in Austin imagine describes any Southerner who actually believes in God, the flag, and the Lone Star state. (For example, I'll bet they can even work their way through the snarled syntax of that last sentence.)

In other words, I suspect them Texans'll say to theirselves, "podner -- now why would those Dem-o-crats be wantin' to keep ol' Tom on that dad-burned ballot, when we all know they tuck to him like a snake tucks to a mongoose?" And at some point (probably in the first 1.3 seconds after asking the question), the answer will occur: pretty much just what I wrote above about the Dem-o-crats thinking that DeLay on the ballot will cause all these "stupid" Texicans to vote for Nick Lampson (former D-TX, 75% from the ADA in 2002).

Now, I don't know about you, but I get positively mean when I sense someone thinks I'm as dumb as a big, dumb, ol' cow-patty sandwich. Especially when I'm pretty sure I top him in the IQ department by a couple of stories or mebbie three. So count me among those who think that this shenanigan will not only not help the Democrats capture the Texas 22nd district -- it will blow up in their faces like that guy in Pennsylvania who tried to light his barbecue using gunpowder.

U.S. Judge Sam Sparks in Austin said DeLay could take his name off the ballot by formally withdrawing from the race. If DeLay formally withdraws, the Republican Party cannot replace him, likely giving the seat to Democrat Lampson.

DeLay's office predicted on Thursday the decision would be overturned by a U.S. appeals court.

They'd be better off if it wasn't... blowback is a beautiful thing to watch -- from the other side!

And here is what Tom DeLay and the Republicans could do to ensure that's exactly what happens: they must make a game out of it. DeLay should stump all across Texas, but definitely hit the 22nd a few times; and he should mock the Democrats' dirty trick in every speech. Get the audience laughing with him at the "East-Coast liberals and their Austin lapdogs" and how they think all real Texans are as dumb as first-loser in a head-pounding competition.

Then, with great fanfare, the Republicans should hold their own "private primary" in the district... at their own expense and in their own venues. Any Republican registered in the 22nd district is urged to go to the local church or Elk's lodge or barbecue pit and "vote."

Tom DeLay should announce that everyone should vote for him -- and on the day he takes office, he'll immediately resign. Then Texas Gov. Rick Perry announces that as soon as DeLay resigns, he will appoint the winner of the "private primary," no matter who it is... guar-an-teed.

Thus, Texas Republicans will know that if they vote for Tom DeLay, they're not really voting for Tom DeLay; they're voting for the guy who won the (unofficial) Republican primary. He'll get both the staunch GOP votes and also the votes of anyone whose reaction to getting smoke blown in his face is to blow some smoke right back at 'em. Whoever the Republican "nominee" is, he'll get his appointment to the seat.

Then, if the Democrats demand a special election to replace the appointee -- Republicans go to town, campaigning on the theme, "look what these here jerks are doing now! Look how much money they're costing the district, just to play their limp-wristed reindeer games." By the time the special election is actually held, the GOP appointee will win confirmation by 80-20... and the net effect will be a strongly Republican seat will become a total Republican lock for the next three electoral cycles.

And then we'll see who looks as dumb as a stuffed bunny-wabbit lacking a leg and a head.

UPDATE: Rhymes With Right notes that governors don't have authority to appoint a replacement member of the House, should one resign -- only senators. Therefore, here is the new scheme: DeLay runs, promising to resign the moment he takes office; he wins, he resigns; then there is a special election, and the Republicans get to vote in a real primary for whomever they want -- and again, the campaign reminds everyone that "this expensive special election was brought to you by... the Democrats! Who insisted that DeLay had to be the standard bearer because they thought you were so stupid, you would vote for the Democrat."

That should work just as well as the above scheme... and even better, it's actually legal!

July 3, 2006

Federal Judge Issues Orders to Navy

Injudicious Judiciary
, Military Machinations

Hatched by Dafydd

First the federal judiciary took control away from the president in the treatment of unlawful combatants; then they seized control away from Congress in the ratification and enforcement of the Geneva Conventions and for determining the jurisdiction of the federal courts -- which can now determine their own jurisdiction, and the Constitution be damned.

And now, a federal judge ("but some are more equal than others") has anointed herself the Commander in Chief of the armed forces; she has issued an order to the Navy not to use sonar during a "mid-frequency active sonar" test in the Pacific Ocean. Why? Because sonar might bother whales:

A federal judge issued a temporary restraining order Monday barring the Navy from using a type of sonar, allegedly harmful to marine mammals, during a Pacific warfare exercise scheduled to begin this week.

The order comes three days after the Navy obtained a six-month national defense exemption from the Defense Department allowing it to use "mid-frequency active sonar."

In a lawsuit filed by [the usual suspects] before a judge appointed by [take a wild guess -- hint: 1999], Judge Florence-Marie Cooper ruled that there was a "possibility" (her word) that the sonar to be tested might kill, injure, or disturb the whales, dolphins, walruses, otters, beavers, dogpaddling elephants, or other mammalian species that just happened to be lounging around Hawaii... so therefore, she has ordered the military not to test it.

In a related decision, rumor has it that Judge Cooper is just about to rule that we can no longer use radar, because it might emit radiation; fighter jets, because they're too noisy (and too closely associated with George W. Bush); and Predator drones -- because, as a vegetarian, she doesn't like the sound of that name.

Were I giving advice to the president, I would tell him, "Dude" -- which is one reason I'm not advising the CinC -- "it's time to draw a line in the sand." (As a Texan, he should appreciate the reference.) Bush should call a press conference and announce that the federal judiciary does not have authority over the military; the Constitution clearly gives that authority solely to the president as Commander in Chief. So he thanks her honor for the suggestion, but the test will proceed as planned, and as the Pentagon has approved.

Lady, we are in a war, for God's sake. You don't stop the military from testing the weapons that save our lives every day just because your heart bleeds for Flipper, Shamu and all their undersea chums.

I realize your calendar stops at September 10th; but for the rest of us, what happened the next day changed everything. In particular, it changed forever the level of monkeyshines that we are willing to tolerate in the war against jihadis.

The chutzpah of the federal judiciary is exceeded only by the arrogance of the elite media.

So to be perfectly polite about it, Judge Florence-Marie Cooper can go take a long walk on a short pier. If the DoD believes we need these tests to defend the nation, and if the Commander in Chief agrees, then neither the judicial nor the legislative branch has the least thing to say about it.

Time to Withdraw From Geneva... If We Can

Hugh Hewitt says that the actual majority decision of the Supreme Court in the Hamden case does not reach quite as far as the unholy quadrumvirate of Justices Stevens, Ginsburg, Breyer, and Souter did: interpreting the 1949 Geneva Conventions to apply to terrorists captured abroad. Specifically, he says that Justice Kennedy did not join that part of the opinion, opting instead for the narrower view that only the procedures of the military tribunals need comply with Geneva, because some of those held in Guantánamo Bay are members of the Taliban, which was an organized militia (as if mere membership meant they couldn't be terrorists).

I don't know if he is correct; maybe it is actually a majority position. But let's assume Hugh is right, and contrary legal commentators are wrong. That still means that the entire war on jihadi terrorism now hangs by the thread of Justice Anthony Kennedy's sanity and common sense... and that that is a slender lifeline indeed.

If that's where the Court, as a majority, stands, then we're still alive; we're on life support but not dead yet. But -- and it's a Big But -- if "Coin-Flip" Kennedy changes his mind and joins with Stevens, we may find ourselves in a true horror movie.

Because of the terrible danger that this may happen, I sincerely believe it is time for the United States to withdraw (by any means necessary) from the Geneva Conventions... if Justice Stevens will even permit the president and Congress to do so.

This drastic reaction is thrust upon us by the plurality's action, led by ultra-liberal Justice John Paul Stevens. There are now four justices who hold that terrorists must be treated as prisoners of war under the conventions.

To arrive at this weird conclusion, they completely ignored Article 4 of Convention III, Relative to the Treatment of Prisoners of War, which defines who is and who is not a "prisoner of war"... and which clearly and unambiguously excludes terrorists. Article 4 holds that:

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy...

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

I do not believe that Stevens ever addressed this provision, which undeniably excludes unlawful combatants, such as al-Qaeda terrorists, from consideration as prisoners of war. He simply dismisses it without discussion and, in essence, declares all unlawful combatants to be legal combatants from now on.

But this clearly was not our intent when we agreed to the conventions. Such unlawful combatants were excluded when we signed, and there's solid evidence we still hold to that exclusion even now.

There was an addition to the conventions, Protocol I, enacted in 1977 that muddied the waters, having the effect of declaring that states party to it must treat even unlawful combatants as they would treat prisoners of war... without calling them prisoners of war.

But because of this very provision, the United States refused to accept Protocol I. We are not signatories to it... shouldn't that alone have convinced Stevens that he was flatly wrong about what we intended when we ratified the original conventions in 1949?

Even the website for the Geneva Conventions itself is at odds with Justice Stevens and his posse:

Combatants who deliberately violate the rules about maintaining a clear separation between combatant and noncombatant groups — and thus endanger the civilian population — are no longer protected by the Geneva Convention.

So how would the terrorists' new status, were a plurality of the Court to become the majority, affect how we must treat them? It would mean, as Stevens argued, we must treat what used to be considered unlawful combatants as well as we treat ordinary American soldiers being tried by courts-martial.

In particular, Justice Stevens, writing for 80% of the majority, opined that Convention III, Relative to the Treatment of Prisoners of War, Article 3, applied to al-Qaeda and other terrorist prisoners. Article 3 requires the following:

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons....

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The latter requires, as a matter of course -- and this is how the quadrumvirate interpreted it -- that any tribunal trying such prisoners must afford them all the legal protections afforded members of the military being court-martialed... including the right to be present, along with the civilian attorney of their choice, for all introduction of evidence, including highly classified evidence exposing methods and personnel of our intelligence-gathering capabilities.

I would think this would also require the production of all relevant "witnesses" that the prisoner demands at his trial -- which could mean yanking from the field every soldier involved in apprehending him, since the capture is certainly relevant to his case.

As one blogsite put it (I wish I could remember which one), that could in theory mean having to undeploy entire units and send them back to the United States for every trial where a clever attorney (Ramsey Clark, for example, who would of course happily volunteer) figures out that rather than disrupt the entire war, we would just drop the case.

This is absolutely nutty, and I cannot believe that a subsequent Court would really enforce that. But we don't have a subsequent Court; we have this one. And this one, under the direction of Stevens, Ginsburg, Breyer, and Souter, and with only the thin reed of Anthony Kennedy preventing it from being a majority of the Supreme Court, has proven that it jolly well might enforce just such a provision... since four justices did exactly that.

All right, so we can't try them by any rational form of tribunal, since we certainly cannot risk exposure of secrets to the attorney provided by al-Qaeda for each prisoner. But the Court did say we could still hold the prisoners for the duration of hostilities. So no problem, right?

Yeah. Sure. Look again at Article 3, section 1, subsection (c):

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

I am sure that the quadrumvirate would hold that this utterly and completely prohibited the interrogation of captured terrorists, no matter where they were captured, where the interrogation took place, or what the circumstances were of the capture. If we caught one of three couriers carrying modified airborne ebola in aerosol containers, we could not, under Hamden, interrogate the prisoner to find out where the other two couriers were.

Certainly nothing more than asking him politely -- certainly not by any method that might outrage his personal dignity. Like, say, waterboarding.

At the moment, I think Congress can redraft the law allowing for tribunals to cover this by requiring a finding by the President of the United States first that a particular detainee is an unlawful combatant anent the Geneva Conventions, and only then can he be tried by the military tribunal. Presumably, this finding would be subject to litigation in the courts; but it's a fairly cut and dried issue, and the test could be written right into the new law.

But that's assuming Kennedy doesn't flip again. If he does, all bets are off.

Simply put, four of the nine justices, through their hysterical and borderline treasonous malinterpretation of the Geneva Conventions, would turn them into an international suicide pact. Stevens sees no "practicable" reasons why captured al-Qaeda terrorists with knowledge of an imminent WMD attack upon the American mainland should not be treated exactly the same as a United States Marine accused of pilfering the petty cash, with all the same rules, protections, and privileges, which includes protection against any form of aggressive interrogation.

So I believe -- purely for defensive purposes -- that it is now time to withdraw from the 1949 Geneva Conventions. It was a good treaty, and it served its purpose; but that was then, this is now.

Wait a minute, Dafydd... what about less drastic measures? If Kennedy flip-flops again, can't Congress just redraft the law to restore our ability to interrogate captured terrorists?

I cannot imagine they could: treaty obligations are considered by the Court the equivalent of constitutional provisions, and they cannot simply be waved away by legislation. No more than could Congress simply pass a law overturning part of the First Amendment. If a majority of the Court ever held that our treaty obligations under the Geneva Conventions required us to treat captured terrorists like members of our own military in courts-martial, Congress could not simply overrule that finding.

And evidently, they also cannot limit the Supreme Court's jurisdiction. They already tried that... and the Court (the full Court, Kennedy concurring) simply rejected it, notwithstanding the constitutional provision that says Congress has exactly that authority. Article III, section 2, of the United States Constitution:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

All right; but what would happen if we did withdraw? Wouldn't that be dangerous for our own soldiers?

The second glib response is that if we do withdraw and no longer extend those protections to others, others will not extend them to us. But this is facile sophistry, because the only enemies we're likely to fight now or in the future -- whether Stalinist North Korea or al-Qaeda and other terrorist groups -- already ignore the Geneva Conventions... as the abduction of Israeli Cpl. Gilad Shalit, currently being held hostage by Hamas, demonstrates: holding hostages is against the Geneva Conventions.

Those countries that actually do abide by them are precisely those Western nations (like the United States) that would abide by them even if fighting a country that did not... and that we're not going to end up at war with in the first place. And even if we did, we could quickly negotiate a temporary treaty incorporating the Geneva protections for the duration of that war.

There is no downside to withdrawal, because the West has accepted their spirit, as it applies to wars against actual countries. For example, we ourselves adhere to the conventions in our treatment of Taliban and Iraqi insurgents who were captured fighting as armed militias while wearing uniforms and such; we do not apply the same interrogation techniques to them that we apply to captured unlawful combatants, such as terrorists.

Even though some Taliban members are at Gitmo, they are precisely those who behaved as unlawful combatants... which is why I'm not in the least confident that Justice Kennedy grasps the distinction; if he thinks that a terrorist becomes a non-terrorist because he happens to be a member of an organized army, even if he acts contrary to the conventions, then Kennedy could easily fall into Liberal-Land hand in hand with the quadrumvirate. It's a short and slippery slope.

So long as the conventions hang out there, and so long as there is no stomach on the part of other countries to negotiate a new protocol making absolutely clear that terrorists are unlawful combatants and are not covered by the protections of the conventions -- and why should they, especially signatories like Iran and Syria? -- the Geneva Conventions are a ticking time bomb, just waiting for one more Supreme Court justice to turn the plurality into a majority.

But the real question is whether the Court -- Kennedy included -- would allow us to withdraw. Having gone so far, would they go the rest of the way and hold that the conventions are eternal, and that we cannot withdraw even if we choose?

I've been looking and looking through them, and I cannot find any reference at all to withdrawal: nothing forbidding it, but no procedures for leaving, either. If Stevens, Ginsburg, Breyer, and Souter are willing to cripple -- essentially obliterate -- our ability to interrogate captured terrorists; and if even Kennedy considers following the conventions more urgent than surviving the war the jihadis imposed upon us; then I'm sure all five of them would move swiftly to prevent any attempt to wriggle out of the straightjacket by withdrawing from the Geneva Conventions altogether.

Which leaves us in a constitutional crisis: has the Supreme Court actually become "more equal" than the other equal powers? Is the only solution impeachment of justices -- assuming the Court would even allow that?

And would the Democrats, in the last analysis, vote to impeach even if Kennedy were to flip on the critical issue of treating all captured terrorists as prisoners of war? Or would they vote to acquit, sacrificing any hope of winning the war against jihadi terrorism in their BDS-driven need to hurt George W. Bush?

The Court has left us with a dreadful Sword of Damocles dangling above our heads. What are we going to do about it?

June 26, 2006

Globaloney Slicers

Although it may seem at first as if the Supreme Court is going to substitute itself for the scientific method in deciding whether anthropogenic global climate change is actually real, it's nowhere near that dire; in fact, this case is a chance for the Court to strike a blow for sanity by clarifying what only it can clarify: whether the executive has a legal duty to solve problems as determined by community leaders -- or just legal jurisdictions and prohibitions set by the Constitution. (Massachusetts v. Environmental Protection Agency, 05-1120.)

Spurred by states in a pollution battle with the Bush administration, the court said it would decide whether the Environmental Protection Agency is required under the federal clean air law to treat carbon dioxide from automobiles as a pollutant harmful to health.

The decision could determine how the nation addresses global warming.

Curiously, the AP article never gets around to mentioning exactly what CO2 -- carbon dioxide -- actually is. Besides being emitted from smokestacks and auto exhaust pipes, it is also emitted every time an air-breathing animal exhales.

Evidently, what the states argue is that we should declare the natural exhalation from snakes, rats, monkeys, and human beings -- and even lawyers employed by the plaintiffs -- as a "pollutant" when it's inhaled by a car or a factory, and that the EPA must perforce regulate -- that is, ban -- any releases over a certain amount.

This would indeed be asking the Court to brush science aside and substitute decree. Can this actually be done? Let's not hold our breath.

The EPA said in a statement that the agency "is confident in its decision" not to regulate the chemical under the federal Clean Air Act and plans to argue its case vigorously before the high court.

Recently, Bush told reporters he views global warming as a serious problem and has "a plan to be able to deal with greenhouse gases" short of regulating their use. It includes developing new technologies for cleaner burning coal, using alternative motor fuels such as ethanol as substitutes for gasoline and expanding nuclear power to produce electricity. [All sensible policies even without taking global warming into account. -- the Mgt.]

Critics argue that carbon emissions have continued to increase - though the rate of increase has declined - and only regulation of carbon dioxide and other greenhouse gases will stem the amount going into the atmosphere.

President Bush has a workable plan: the only way to reduce the use of carbon-based fuel is to find an alternative that uses less carbon. (This is not a trick question.)

The states' plan, contrariwise, is to shake a fist and shout at every industry in the United States, confident this will cause emissions to disappear while the economy magically remains constant. By the way, which states in particular do you think might have been involved in this lawsuit?

California (9%)

Connecticut (10%)

Illinois (11%)

Maine (9%)

Massachusetts (25%)

New Jersey (7%)

New Mexico (-1% * )

New York (19%)

Oregon (4%)

Rhode Island (21%)

Vermont (20%)

Washington (7%)

(The number in parentheses is Kerry's margin of victory over Bush in each of these plaintiff-states. * New Mexico actually went for Bush by 1 point; but the governor of New Mexico is former Clinton Secretary of Energy Bill Richardson... and guess who made the decision for New Mexico to join the lawsuit?)

In addition, several cities joined up, including Baltimore, New York City and Washington D.C. (all Democrat, all the time), as well as America Samoa (huh?)

Besides the governmental bodies, other plaintiffs included the Union of Concerned Scientists (they of the "doomsday clock," which is always set closer to midnight whenever a Republican is elected), Greenpeace (who are in the business of sabotaging our military), and Friends of the Earth (say, I wonder where they stand on the political spectrum!)

A more motley looking crew I don't think we'll ever find. Every wild-eyed lefty in America would crawl on his hands and knees though boiling pitch to be a part of the lawsuit to force President Bush to ban carbon dioxide.

The states involved, which together account for more than a third of the car market, say the Clean Air Act makes clear carbon dioxide is a pollutant that should be regulated if it poses a danger to public health and welfare. They argue it does so by causing a warming of the earth.

Reckon they didn't get the memo about calling it "global climate change," not "global warming," so even when the weather is unseasonably cold they can still cite that as evidence.

Maybe it's just me, but I don't see carbon dioxide on that list -- and no, you cannot snip the first word off carbon monoxide and combine it with the second word of nitrogen dioxide. In fact, every pollutant on this list except ozone is a polluting additive not normally found in air, something that would be virtually undetectable in the air of A.D. 1000, except perhaps in special areas (such as around a lead mine or in the bubbling cauldrons of Yellowstone National Park).

But... carbon dioxide? That has always been a huge and natural part of our atmosphere. Plants "breathe" it in order to live. Plants actually grow better in a high CO2 environment than in the current atmosphere -- which is not true of any of the actual pollutants listed above.

To call this "air pollution" is to strain the definition to the breaking point. It's ludicrous. Maybe it should be regulated; I don't think so, but let's suppose it should be. Then get Congress to regulate it!

Get them to pass the Excess Exhalation Act of 2006... don't try to shoehorn carbon dioxide into a regulatory scheme that long predates the globaloney panic by calling CO2 "pollution," as if it were some alien matter that somehow snuck into our pristine breathing matter. (If you call a tail a leg, how many legs does a dog have?)

But more to the point, there is no general legal duty for the executive (or Congress) to solve problems. The Court cannot tell the president that he is obliged to force oil companies to drill for more oil, or that he must resolve the immigration question, or that he has to shift U.S. troops into Jordan in order to guard against a sneak attack from Syria.

Occasionally, the courts will order the executive to act; but that is generally only as a remedy for past misdeeds... such as Brown v. Board of Education, where the executive was ordered to desegregate the schools. The Constitution is silent about the exact level of carbon dioxide that is allowed to be in the earth's atmosphere.

If the Court held that states could sue to force the president to start regulating carbon dioxide, even in the absence of any legal mandate to do so -- and clearly Congress never imagined that what it called "air pollution" would be extended to include exhalation -- just because the plaintiff-states think that would be a better policy, then that would spell the end of our form of government: every state, city, and NGO would sue in federal court to force the White House or Congress to enact specific pieces of legislation that the plaintiffs prefer. That's what we have a Congress for, for heaven's sake: to make such decisions in a democratic manner.

Although it's a logical end-point for a Court that is increasingly narcissistic, I still have confidence that, even if four justices thought this case should be heard (a divided circus-court narrowly held for the administration), the full Court will come down resoundingly against the states in their arrogant lawsuit... and by more than 5-4, too. I'm guessing that both Justice Anthony Kennedy and Justice David Souter will rule for the president, and maybe even Justice John Paul Stevens (and of course Justices Alito, Scalia, Thomas, and Chief Justice Roberts). I am absolutely convinced this writ of cert is a dead cert.

So I look forward to the Court clarifying that no, neither the states nor Congress can simply dictate to the president how he will do his job. The executive is a co-equal branch of government... not Vermont's errand boy.

June 12, 2006

Nine-Judge Monte

Constitutional Maunderings
, Court Decisions
, Injudicious Judiciary

Hatched by Dafydd

The most recent unanimous decision of the Court on the question of the constitutionality of lethal injection as a method of execution really doesn't advance the question much, at least as far as us non-lawyers are concerned. (Our last foray on this battleground was Three-Judge Monte, back in April.)

All that the Court decided was that convicted cop killer and bank robber Clarence E. Hill can raise the issue with the lower courts; the Supreme Court did not rule that lethal injection was unconstitutional.

The Supreme Court ruled unanimously today that condemned prisoners can challenge the humaneness of the lethal blend of chemicals that are to be used to execute them.

The ruling, written by Justice Anthony M. Kennedy, continues the life-and-death drama involving Clarence E. Hill, who was strapped to a gurney on Florida's death row when Justice Kennedy granted a stay of execution on Jan. 25.

You can read the decision and the full opinion here, but this is the Readers Digest condensed version:

Facing execution in Florida, petitioner Hill brought this federal action under 42 U. S. C. §1983 to enjoin the three-drug lethal injection procedure the State likely would use on him. He alleged the procedure could cause him severe pain and thereby violate the Eighth Amendment's prohibition of cruel and unusual punishments. The District Court found that under controlling Eleventh Circuit precedent the §1983 claim was the functional equivalent of a habeas petition. Because Hill had sought federal habeas relief earlier, the court deemed his petition successive and barred under 28 U. S. C. §2244. The Eleventh Circuit agreed and affirmed.

Held: Because Hill's claim is comparable in its essentials to the §1983 action the Court allowed to proceed in Nelson v. Campbell, 541 U. S. 637, it does not have to be brought in habeas, but may proceed under §1983. Pp. 4-10.

In other words, this is a narrow, technical ruling whether the action Hill filed under §1983 of the United States Code was actually just another bite at the same habeus corpus apple, or whether it's a different apple from his previous writs. The Court unanimously held that this was a different issue that should be decided on its own, not brushed aside.

Beyond that, we've not much to say until this works its way through the system and comes back to the Court again... where (one hopes) sanity (and the Scalia position) will prevail:

On the other side, Justice Antonin Scalia, a strong death penalty supporter, said the Supreme Court has never held that a state must use a method that causes the least amount of pain.

"Hanging was not a quick and easy way to go," Scalia said.

(Alas, that last quotation is from a Reuters article that is no longer available.)

Democratic leaders said they certainly would filibuster one of the nominees, Terrence W. Boyle, and might filibuster the second, Brett Kavanaugh, if Republicans refuse to call him back for a second hearing before the Senate Judiciary Committee. The partisan rhetoric was the strongest signal yet that the Senate might revisit the brinkmanship that brought the chamber to the edge of crisis a year ago, when a bipartisan group of 14 members crafted a temporary cease-fire....

Reid said Kavanaugh is subject to "a possible filibuster" in the full Senate.

This comes just a day after Sen. Reid essentially demanded that Majority Leader Bill Frist (R-TN) give Reid veto power over any Republican conferees that Frist names to the House-Senate conference on an immigration bill, should the Senate pass such:

As important as the number of amendments is what happens in Conference.

With Republicans in the House having passed a bill making all undocumented immigrants felons, with the House majority leader publicly dismissing the Senate’s bill, and with the House Judiciary Committee Chairman serving as the sponsor of the felon provision in the House legislation, it is imperative we have a firm agreement on who the conference participants will be before moving to the bill.

Reid's sudden imperiousness raises an interesting question: is Sen. Harry Reid just "rolling the dice," or does he have solid intelligence that the Democrats will win the vote on the "constitutional option" rules change in the Senate -- and does Reid already know who will win the battle over who gets to name Republican conferees? Have GOP members of the "Gang of 14" signalled to Harry Reid that they're ready to cave? (The only remaining option -- that Reid would initiate such tactics knowing he was going to lose -- is politically absurd.)

I certainly hope Reid is just throwing a "Hail Mary" two seconds before the buzzer.

The Democrats' objection to Judge Boyle at least has merit; whether it's true or not is a separate question. The WaPo article doesn't go into detail; but an AP story yesterday gives a bit more depth:

Kavanaugh's negatives, Reid added, "pale in comparison to Boyle.'' Reid said he had read in an online article that Boyle had bought stock in General Electric midway through presiding over a pension lawsuit against the company. Then Boyle ruled against the plaintiff's claims of long-term and pension disability benefits.

"He not only shouldn't be a trial court judge as he is, but to think that he should be elevated to a circuit court of appeals is outrageous,'' Reid said.

Aha: Reid accuses Judge Boyle of corruption because he read it on the internet! (Possibly on Juan Cole or Daily Kos.)

If it were true that a sitting federal judge were ruling on cases in order to inflate the value of his own stock portfolio -- which is precisely what Harry Reid has accused Boyle of doing -- then of course, that judge should not only not be elevated to the circus court, he should be impeached, indicted, tried, and convicted. But contrariwise, if a sitting senator -- the minority leader of the Senate -- is slandering a federal judge with outrageous and unsupported criminal accusations purely to gain a partisan advantage in the confirmation vote... then it is that senator who should be expelled from the Senate in disgrace.

Majority Leader Frist should demand that Sen. Reid produce evidence for his charge (something more than a story on Salon or on some blog); and if he has none, call a press conference to demand that Reid resign his seat.

The opposition to Brett Kavanaugh, by contrast, is simply risible:

First nomination up is Kavanaugh's, which could be reported out of the Judiciary Committee by a party line vote as early as Thursday. Democrats, however, are pressing for another hearing and more documents in an effort to find out whether Kavanaugh was involved in White House policies on torture, the National Security Agency's wiretapping program and Bush's relationship with convicted lobbyist Jack Abramoff.

Got that? The Democrats admit they have no information whatsoever to indicate Kavanaugh was involved in crafting any of the policies they dislike -- such as vigorously questioning al-Qaeda military leaders captured on the battlefield during wartime without giving them lawyers and setting bail. They haven't a clue... the Democrats brazenly admit that this is nothing but a fishing expedition (let's see whether he was involved!) and a chance to revisit those policies and rail against President Bush and Defense Secretary Donald Rumsfeld.

For his part, Kavanaugh told Sen. Charles Schumer, D-N.Y., Thursday that he did not play an active role in Bush's secret domestic wiretapping program or in any dealings with convicted lobbyist Jack Abramoff.

Schumer said he did not ask Kavanaugh about his role in the torture policy. But White House spokeswoman Perino said, "Mr. Kavanaugh was not involved in any detainee policy development.''

And on that flimsy pretext, Sen. Reid promises a return to judicial filibusters.

The "Seven Dwarfs" (Republican members of the "Gang of 14") are John McCain (AZ), Mike DeWine (OH), Lindsay Graham (SC), John Warner (VA), Olympia Snowe (ME), Susan Collins (ME), and Lincoln Chafee (RI). Two others not in the Gang but still potentially trouble are Arlen Specter (PA) and Charles Grassley (IA).

At this point, Sen. Frist must speak individually, one-on-one with each Republican on this list to determine whether he or she is still willing -- as they all were a year ago -- to vote for the constitutional option (changing Senate rules to ban judicial filibusters) if the Democrats return to such tactics in the absence of "extraordinary circumstances." And Frist should also ask whether any of them considers the Democrats' charge that Brett Kavanaugh was a member of President Bush's staff to be "extraordinary circumstances."

Similarly, do the Seven Dwarfs (plus two) agree with Harry Reid that a bald accusation of corruption in the absence of a shred of evidence is enough to rise to the level of "extraordinary circumstances?"

It's hard to imagine that GOP senators, even these ones, would look the majority leader right in the eye -- and lie through their teeth. But let's find out.

April 26, 2006

Three-Judge Monte

Injudicious Judiciary

Hatched by Dafydd

Want a preview of what the Supreme Court would be like if a Democrat won the presidency in 2008? Check out this gang-mugging of Florida Assistant Deputy Attorney General Carolyn Snurkowski and U.S. Justice Department lawyer Kannon Shanmugam. The subject: whether even lethal injection is too "cruel and unusual" a method of execution:

Several Supreme Court justices on Wednesday grilled state and U.S. government lawyers about whether lethal injections as currently administered for executions caused excruciating pain.

"Your procedure would be prohibited if applied to dogs and cats," Justice John Paul Stevens told Florida Assistant Deputy Attorney General Carolyn Snurkowski.

Justice Ruth Bader Ginsburg also asked whether the method currently used involved the risk of a death row prisoner dying an excruciating death....

Several justices questioned whether the state had investigated the method of lethal injection to make sure it was administered in the most humane and painless way possible.

Justice Stephen Breyer said states could administer more sodium pentothal to ease the pain or could have a doctor present at the execution. "That doesn't seem too difficult," he told Snurkowski.

We notice which three justices constitute "several": Stevens, Ginsburg, and Breyer. Quelle surprise!

Breyer is being utterly disingenuous, of course. He knows very well that a requirement that a doctor be present at the execution -- thus assisting it, even if he never touches the condemned -- is the same as banning all executions... because doctors are absolutely forbidden by the code of ethics of the AMA to assist at executions in any way, and any doctor who did so would be in danger of losing his license to practice medicine. The most a doctor is allowed to do is to be brought in after the execution is over to examine the corpse and officially declare it dead.

Justice Breyer is well aware of this; he's not an utter fool. It's quite explicit in the American Medical Association Code of Medical Ethics:

E-2.06 Capital Punishment

An individual’s opinion on capital punishment is the personal moral decision of the individual. A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution. Physician participation in execution is defined generally as actions which would fall into one or more of the following categories: (1) an action which would directly cause the death of the condemned; (2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned; (3) an action which could automatically cause an execution to be carried out on a condemned prisoner.

Physician participation in an execution includes, but is not limited to, the following actions: prescribing or administering tranquilizers and other psychotropic agents and medications that are part of the execution procedure; monitoring vital signs on site or remotely (including monitoring electrocardiograms); attending or observing an execution as a physician; and rendering of technical advice regarding execution.

In the case where the method of execution is lethal injection, the following actions by the physician would also constitute physician participation in execution: selecting injection sites; starting intravenous lines as a port for a lethal injection device; prescribing, preparing, administering, or supervising injection drugs or their doses or types; inspecting, testing, or maintaining lethal injection devices; and consulting with or supervising lethal injection personnel.

By contrast, of course, the AMA has no policy against partial-birth abortion... even in the ninth month of pregnancy... though it does suggest that third-trimester abortions not be performed unless the doctor really thinks it necessary:

According to the scientific literature, there does not appear to be any identified situation in which intact D&X [partial-birth abortion] is the only appropriate procedure to induce abortion, and ethical concerns have been raised about intact D&X. The AMA recommends that the procedure not be used unless alternative procedures pose materially greater risk to the woman. The physician must, however, retain the discretion to make that judgment, acting within standards of good medical practice and in the best interest of the patient.

There appears to be no opportunity for a doctor to participate in an execution, however -- even if he really thinks it necessary.

This is the back-door method that the Left hopes to use to ban all executions -- regardless of the will of the people. The whole "Project Innocence" tactic turned out to be a big bust: they thought that if they could find even a single person executed who might have been innocent, then America would turn away from capital punishment in national revulsion.

But it turns out Americans are more sophisticated than Democrats thought. Most people already believe that innocent people have occasionally been wrongfully executed:

Caryl Chessman, executed in 1960 for being the "Red-Light Bandit," is probably one such; the evidence against him was pathetic, and his trial was a mockery of justice. Bruno Hauptmann, executed in 1936 for the kidnapping and murder of the Lindbergh baby, may well be another.

Alas for the anti-execution fanatics, citizens have already factored this likelihood into their support for the death penalty. They understand that justice is never perfect, and innocent people are convicted, sent to prison, and some even die in prison, only to be exonerated posthumously.

Sadly, some innocent people (at least innocent of the particular murder) have been executed... and others will surely be executed in the future. It's guaranteed. But more innocent people will die if murderers are not executed than the tiny number of innocents wrongfully executed... and Americans (unlike liberals) comprehend this fact.

The anti-execution Left finally understands that it will never turn Americans against the death penalty, or at least not in the forseeable future. So they turn to their most reliable weapon in their war against the people: the federal courts. They got hanging banned as a method of execution because it was "cruel and unusual;" it was replaced by Old Sparky, until that was banned; electrocution was replaced by the gas chamber -- until that, too was banned for causing pain.

The final replacement was lethal injection, the most gentle and painless method imaginable for putting a murderer to death. And now lethal injection is under the same assault... for the same reason: somebody might get hurt -- before he dies.

Fortunately, we have a breath of fresh sanity on the Court:

On the other side, Justice Antonin Scalia, a strong death penalty supporter, said the Supreme Court has never held that a state must use a method that causes the least amount of pain.

"Hanging was not a quick and easy way to go," Scalia said.

Perhaps this goes a long way towards explaining this disturbing trend on the Left. From RealClearPolitics Blog:

As Ronald Cass wrote three weeks ago on RealClearPolitics, expect to hear the call for Justice Scalia to recuse himself to continue as liberals try and find ways to silence the conservative justice....

I hope conservative Republicans come to their senses -- and come back to the party. As much as they believe George W. Bush is not a conservative (and to be fair, he made it clear in 2000 that he was something related but different, a "compassionate conservative"), his judicial appointments have been stellar compared to those of his predecessor -- and compared to those we know would come from a Democratic successor.

And the worst possible thing we could do to promote a sane and rational judiciary (along with every other desirable policy, from less spending to border control to national defense) is help elect more Democrats to Congress... either by voting for them ourselves, or even by sitting home and sulking on November 7th.

March 17, 2006

Moussaoui Case - Shocking Allegation

Injudicious Judiciary
, Terrorist Attacks

Hatched by Dafydd

In Salvaging Death From Life, we discussed the insane decision by Clinton-appointed Judge Leonie Brinkema to throw out the better half of the prosecution's case for the death penalty against Zacarias Moussaoui, on the grounds that a lawyer working for the Transportation Security Agency (TSA), Carla Martin, sent several FAA witnesses a transcript of the opening statements and the direct and/or cross examination of an FBI agent.

Now comes the rather shocking allegation that the entire transaction was a deliberate set-up whose purpose was to destroy the prosecutor's case.

As near as Big Lizards can figure out the agendas, here is what the AP story seems to say....

The allegation comes from Robert Clifford and Gregory Joseph, lawyers for family members of victims of the 9/11 attack. The lawsuit filed by the family members claim that United Airlines and American Airlines could have prevented 9/11 by stopping the hijackers from getting on the planes with knives and boxcutters.

The government also wants to prove that: if they can show that 9/11 could have been prevented if Moussaoui had told them about the knives and boxcutters, then Moussaoui should be put to death.

Contrariwise, the lawyers for the airlines clearly want for their jury to believe that 9/11 could not possibly have been prevented; that it would have happened the way it did regardless of any attempt to prevent boxcutters from being carried onto the planes. That way, it wouldn't be the airlines' fault.

And of course, Moussaoui's lawyers would also like to prove that, since then their client's lies would not have led to any deaths that wouldn't have occured otherwise. It wouldn't be Moussaoui's fault, either.

You follow?

So the plaintiff's lawyers and the prosecutors both want to show that 9/11 could have been prevented; and the defense lawyers in both cases want to prove that it could not have been prevented.

According to the allegation, the airline lawyers read the prosecutor's opening statement and became very worried. If the prosecution proved its case, it would be very hard for the airlines to evade a judgment. So allegedly, the airline lawyers contacted Carla Martin of the TSA and told her to queer the case: she had to get the FAA witnesses to change their stories and say that no FAA order would have stopped any of the hijackers:

Because that government position could have "devastating" impact on the airlines' defense in the civil suit, American Airlines' lawyer forwarded the transcript to a United Airlines lawyer who forwarded it to Martin, Clifford and Joseph wrote. As proof, they cited March 7 e-mails that they provided to [U.S. District Judge Alvin] Hellerstein but which were not immediately available here. [Hellerstein is the judge hearing the civil case. -- the Mgt.]

"The TSA lawyer then forwarded the transcripts and sent multiple e-mails to government witnesses in a clear effort to shape their testimony in a manner that would be beneficial to the aviation defendants" in the civil suit, they wrote. [As we understand it, to shape the testimony to make it seem as if 9/11 could not have been prevented, which would also help Moussaoui's defense. -- the Mgt]

They then quoted a March 8 e-mail Martin sent to one of the government's Moussaoui witnesses that said:

"My friends Jeff Ellis and Chris Christenson, NY lawyers rep. UAL and AAL respectively in the 9/11 civil litigation, all of us aviation lawyers, were stunned by the opening. The opening has created a credibility gap that the defense can drive a truck through. There is no way anyone could say that the carriers could have prevented all short-bladed knives from going through. (Prosecutor) Dave (Novak) MUST elicit that from you and the airline witnesses on direct."

In other words, Martin's actions were a direct assault on the prosecution's case -- she intended to help the airlines -- hence Moussaoui -- and not the government.

Yet even so, when she was caught red-handed, Judge Brinkema's response was to finish what Carla Martin started: Brinkema's order destroys the government's case, prevents Moussaoui from receiving the death penalty, and incidentally helps the airlines defend against the lawsuit. At least, that is what the plaintiffs' attorneys claim.

Through her attorney, Martin denies the allegation; but she has not yet appeared to speak on her own behalf, nor has her attorney yet had a chance to formulate a response. The first question, of course, is whether there was any pre-existing relationship between the airlines and the TSA, or some personal or monetary arrangement between their respective attorneys, which was so deep that Martin would risk disbarment or even prison (for witness tampering), just to help the airlines out in their civil lawsuit. If such a connection emerges, then clearly, Brinkema's order should not stand.

In fact, if this is true, then there should be a mistrial: the penalty phase for Moussaoui should be moved to a different judge (preferably in a different venue) and retried... because clearly, the people of the United States were sandbagged, if this allegation is even partially accurate.

Nobody alleges that Brinkema was part of this scheme; but her obvious bias against the prosecution led her to blame the government for a set-up that seems to have been aimed squarely at destroying the prosecution's case.

If this is true, it's damned if you do, damned if you don't: if the scheme had succeeded, maybe they could have gotten the witnesses to destroy the government's case (if the witnesses were willing to commit perjury, which I doubt). But when it failed -- that, too, was used to destroy the government's case!

Again, bear in mind: these are allegations from an interested party in the case: the lawyers for the plaintiffs in the lawsuit against the airlines. They may be wrong, and Carla Martin may have had no contact with the airline attorneys. But it's hard to believe lawyers would make false allegations (and what, fake the e-mails?), when the deception would be revealed immediately -- and would destroy their own careers, if they were found to be misleading the court (either court). Unless some major contrary evidence is produced, I'm inclined to believe this charge.

If the judge does not reverse herself, especially in light of the new allegations, then I sure hope the prosecutors appeal up the chain, all the way to the Supreme Court, if they will take it: the death penalty for Moussaoui should not be held hostage to the understandable desire of United and American not to have to pay a huge judgment to survivors of the victims of 9/11.

March 16, 2006

Salvaging Death From Life

Injudicious Judiciary
, Terrorist Attacks

Hatched by Dafydd

A day or two ago, a foolish lawyer in the Transportation Security Administration (TSA), Carla Martin, "coached" witnesses in the Zacarias Moussaoui case death-penalty phase. The witnesses worked for the Federal Aviation Administration (FAA), and prosecutors intended to call them to testify about defensive measures they would have taken, had the FAA only known that the 9/11 attacks were imminent... which (the government argues) they would have known if Moussaoui had told the truth to federal investigators when he agreed to cooperate.

So in retaliation for the hapless TSA lawyer violating that rule, the judge first considered ruling that the government couldn't see the death penalty against Moussaoui at all (?) -- and then finally ruled that they could seek it, but they weren't allowed to use their best evidence (!)

Sympathy for the Devil

The so-called "coaching" consisted of sending the witnesses transcripts of previous testimony, which the judge -- Clinton appointee Leonie Brinkema -- had specifically enjoined the government from doing. I suppose the presumption is that the witnesses would never have thought of saying they would have banned box cutters if they knew terrorists were going to hijack planes with box cutters... which is about the most preposterous presumption I've seen in this case.

The witnesses themselves (all of them) testified that nothing in the transcripts affected how they were going to testify -- which is kind of a no brainer: if Moussaoui had said "terrorists will use box-cutters to hijack airplanes and fly them into buildings," what do you think the FAA would have done?

In fact, several of the witnesses testified that they had not even read the attached transcripts. Yet they still are being banned from testifying. Can't trust those tricksie FAA folks!

I'm not a lawyer... and in this case, I think that gives me a clearer view of the absurdity of this: the death penalty is designed to protect the people of the United States, not to aid lawyers at the Transportation Security Agency. So if one of the latter screws up, why is Brinkema punishing the rest of us?

This is insane... but of course, she was appointed by Bill Clinton in 1993 and confirmed while the Democrats still controlled the Senate. I suspect they would have confirmed a hamster, if Clinton had assured them it would be anti-death penalty and pro-abortion.

In desperation, the prosecutors are trying to undo the damage. They have filed a motion begging the judge to let them call someone else from the FAA to testify to what the other witnesses would have testified, or something else to indicate that Moussaoui's specific information about 9/11 would have resulted in some useful reaction from the FAA that would have saved at least one victim. But I suspect that Brinkema will rule against them -- presumably on the theory that the action by Carla Martin from the TSA taints all conceivable witnesses from the federal government, even if they have never even heard of her and couldn't pick her out of a lineup. Can't trust those tricksie witnesses for the prosecution!

I think Brinkema has had it in for the feds for some time. She had an earlier run-in that borders on the psycho-comical, in my opinion. From the first Fox News article:

Brinkema noted that last Thursday, Novak asked a question that she ruled out of order after the defense said the question should result in a mistrial. In that question, Novak suggested that Moussaoui might have had some responsibility to go back to the FBI, after he got a lawyer, and then confess his terrorist ties.

Great Scott! The prosecutor suggested that Moussaoui should have confessed to what he has been convicted of doing. It's an outrage. Stop the trial, set Moussaoui free! His right not to be made uncomfortable for being a terrorist who conspired to kill 3,000 Americans was brutally violated.

I don't see any of this as having any bearing on the case. All the prosecution need show is that Moussaoui's lies resulted in at least one death in the 9/11 attacks. Nothing about what was shown to the FAA witnesses alters what they were going to say -- unless you first presume they're liars who needed to know what lie to tell in order to perjure themselves. Is that Brinkema's base assumption?

She has consistently made rulings throughout this trial that make it clear she thinks of this as an ordinary criminal case -- like a carjacking or a residential burglary: she expressed enormous frustration that much of what the government knows about al-Qaeda was classified, and they refused to parade it through open court; she insisted that Moussaoui be allowed to have a conversation with Ramzi Binalshibh, without the slightest concern about what terrorist communications they might exchange. And now she deliberately cripples the prosecution's case for the death penalty simply because some jerk working at the TSA stupidly enclosed some transcripts in e-mails... as if that were a mitigating factor for Moussaoui's crime or retroactively made it less likely that his lies contributed to the deaths of at least one of the 2,967 human beings and 19 terrorists that bright fall morning.

This is utter nonsense... and a perfect illustration why we cannot try terrorists in civilian courts.

March 2, 2006

Did Someone Call Me Schnorrer?

Injudicious Judiciary

Hatched by Dafydd

Everybody's bagging on Justice Ginsburg for this incident, captured live through the magic of sketching:

Justice Never Sleeps

But actually, I think this is terribly unfair. We don't know for sure that Ruth Bader Ginsburg was sleeping like a baby, catching forty winks, out like a light, dead to the world, sawing wood, visiting the Sandman, in the arms of Morpheus, far beyond the wave, touring Slumberland with Little Nemo, sacked out, crashed out, checked out, out of it, floating, doing a Rip Van Winkle, or gone.

There are other explanations, you know. For just one example, maybe she was praying....

February 1, 2006

The Two-Edged Sword, Revisited

Paul at Power Line disagrees with my earlier analysis, that the "Alito Rule" will not really take, because Republicans won't follow the Democrats' lead in trashing the system.

He notes that the Alito Rule is one of procedure, not substance, and that Republicans may be willing to match the Gainsayer Party on procedural issues... for the sake of consistency, if nothing else:

As I tried to explain in my post asserting an "Alito rule," the criteria for voting on judicial nominees has a procedural element to it, at least in the sense that it's more important to have a consistently applied rule than to have any particular rule. I think Republican politicians will grasp this. If not, for what it's worth, conservative bloggers will be there to enlighten them. [Emphasis added]

I'm a little skeptical, since to most folks, there is no difference between procedure and substance: voting to filibuster a vote on a judge is the same as voting against that judge, I suspect, in the minds of the average voter; to most folks, the distinction is lawyer-talk.

Thus, if Republican voters are angry at the Democrats for "voting against" a qualified judge, they might well be equally angry at the Republicans for doing the same thing. We skate across thin ice when we neglect the appeal of basic fairness to the American voter... it's one of our core national principles.

But at a deeper level, I'm torn: I don't know whether I hope that Paul is right, because that would help the GOP cause of getting more judicial conservatives on the courts... or hope that Paul is wrong, since I think it's just plain wrong for a minority to filibuster a majority-supported nominee, whether to the bench or a cabinet or other administrative position.

Do we hope for democracy to prevail, whatever the cost? Fiat justicia ruat coelum? Or do we hope for an undemocratic response to preserve future democracy? Paul Mirengoff has, quite deliberately, I am sure, set us a variant on the greatest dilemma in ethics: dare we tolerate the intolerant?

I don't know the answer to that question (though I do know how to integrate some transcendental functions). This is dangerous stuff.

January 31, 2006

The Two-Edged Sword

In another rare disagreement with one of my favorite bloggers at my favorite blog, Power Line -- Paul this time, not John -- I have to take exception to what Paul calls the "Alito rule":

This was basically a straight party line vote -- 90 percent of the Democrats voted no. The vote changes the "rules" for confirming Supreme Court Justices. Under the Alito rule, Senators will vote against highly qualified nominee for no reason other than that they expect the nominee to rule contrary to their preference on major issues. Under the Alito rule, the president's party, in effect, must control the Senate in order for the president to have top-notch nominees of his choice confirmed. When the the president's party doesn't control the Senate, only compromise nominees acceptable to both parties can expect to be confirmed.

Typically, I find Paul more equivocal than I; but this time, our roles are reverse: I think Paul draws too sweeping a conclusion.

In fact, I believe that the Alito Rule -- party-line vote for Supreme-Court nominees in the Senate -- will apply in the future only when the president is a Republican. When a Democrat is in the White House and nominates a controversial but highly regarded leftist to the Court, the Republicans will be unable or unwilling to use the "Alito Rule" against him: they will vote for the nominee the same way they voted for Ginsburg and Breyer.

Republicans have proven over and over that on certain issues, they will take the high road, following their own consciences, whatever that may entail, even when the position is a political loser; in fact, even when it's political party suicide. Look at Sen. Arlen Specter calling for hearings into the NSA al-Qaeda-tapping program, or to conservative Republicans who vote against the president's position on any number of issues, from drilling in ANWR to reforming Social Security to banning partial-birth abortion.

Notwithstanding the foul, revolting Democratic revolt against Samuel Alito, in which they finally stooped all the way down to personal vilification and out and out slander -- if there were not an exception carved out for speeches on the floor of Congress, a number of Democratic senators would find themselves in civil court -- I see no evidence that Republicans plan on following suit the next time a Democratic president nominates another Ginsburg. Rather, they will complain bitterly, recall the Alito mini-fili and the near party-line vote, lecture the Democrats -- and then hold their noses and once again vote for the qualified but far-left nominee.

It's simply one element of the Culture of Clarity that permeates the Republican Party. And the Democrats know it... they would never dare push the envelope as they do if they thought the GOP would respond in kind.

January 26, 2006

Filibuster Count: Two to Go

Filibusters
, Injudicious Judiciary

Hatched by Dafydd

With today's pro-Alito declarations by Democratic Senators Tim Johnson (somewhat expected, given that Bush carried South Dakota by more than twenty-one points) and West Virginia's Robert Byrd, of all people, brings the total number of Democrats declaring they will vote for Samuel Alito, including Nebraska's Ben Nelson, to three.

One presumes that a senator willing to vote for Alito will likewise refuse to filibuster against him.

Thus, there are a minimum of three Democratic votes against filibustering Alito. While it's possible that some Republicans will vote against him -- keep an eye on the usual suspects -- I doubt any will go along with a filibuster. Thus, we need only consider Democratic votes for such a procedural brick wall.

There are 45 Democrats, counting Jumpin' Jim Jeffords (I-VT) as one of them (since that is the party with which he caucuses). They need 41 votes to sustain a filibuster, not taking the constitutional option into account. Thus, at the moment, the best they can get -- if every other Democrat cooperates -- is 42.

So if just two more Democrats declare support for Alito, it will, for all practical purposes, be impossible to filibuster Alito's confirmation vote... and that will likely open the floodgates. If the party crosses that threshold during debates, then all or nearly all will vote for cloture. In the actual vote, Alito will probably get about 60 senators voting for him.

But if no other Democrat declares between now and the vote, there might be a serious attempt to mount a filibuster -- not because they think they'll win, but rather to keep sucking up to the radical Left that increasingly controls the Democratic Party. We'll see an attempted filibuster that is broken (either by peeling off a couple of Democrats during the actual cloture vote or via the constitutional option immediately afterward), and Alito might end up with no more than 51 or 52 senators, claiming (or tying) the dubious title of narrowest Supreme Court confirmation ever (currently held by Clarence Thomas at 52-48).

So which hand will they choose? Will the Dems pull back from the brink? Or will they, like buffalo stampeded by "environmentally friendly" American Indians, charge blindly off the cliff, snorting and bellowing all the way down?

January 10, 2006

The New York Times Needs to Read Power Line

The New York Times today reports that the interrogation of Judge Samuel Alito today focused on a formerly obscure concurrance by a Supreme Court justice in 1952... in a case that has already been thoroughly analyzed, in far greater depth, by the tribunes at Power Line.

The case they refer to is Youngstown Sheet and Tube Company v. Sawyer 343 U.S. 579 (1952), and Paul Mirengoff at Power Line first discussed it back in late December, anent the NSA intercept program that has just been outed by anonymous "officials." Paul only laid out the basics of the particular concurrance by Justice Robert H. Jackson that is now, more than two weeks later, the "focus of [the] hearings" into Alito's nomination to the Supreme Court.

On New Year's Day, John Hinderaker took a whack at the Jackson formulation in a much longer piece.

The basics of the case -- and why lefties think it applies to President Bush and the NSA intercepts -- are quickly recounted in the Times piece:

The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejected President Harry S. Truman's assertion that he had the constitutional power to seize the nation's steel mills to aid the war effort in Korea. Whether and how Justice Jackson's analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program, will plainly be a central theme when questioning of Judge Alito begins Tuesday morning....

In 1952, the Supreme Court faced a set of clashing interests in the Youngstown case broadly similar to those in the current surveillance controversy. That April, President Truman seized the nation's steel mills to prevent an expected labor strike, saying that national security during the Korean War required uninterrupted access to steel.

In June 1952, in a 6-to-3 decision, the Supreme Court rejected the various legal rationales offered by the Truman administration for the seizures. Many of those rationales have echoes in the justifications offered by the Bush administration for its detention of enemy combatants, harsh interrogations and domestic surveillance without court approval.

"Echoes in the justifications..." wait, what did the Court actually decide in the Youngstown case?

Writing for the court, Justice Hugo L. Black said the president's power was extensive but not unlimited.

"Even though 'theater of war' be an expanding concept," Justice Black wrote, "we cannot with faithfulness to our constitutional system hold that the commander in chief of the armed forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nation's lawmakers, not for its military authorities."

Ah, of course: seizing private property to prevent a strike. Yes, I can see how that's "broadly similar" to the National Security Agency intercepting phone calls from al-Qaeda to their agents in the United States. And I can definitely hear those "echoes in the justifications" offered by President Bush why he should be able to hold enemy combatants in military detention.

To its credit, the Times does admit that the "broadly similar" facts seem oddly dissimilar:

There are, of course, obvious differences between the Youngstown case and recent efforts to combat terrorism. The seizure of the steel mills, for instance, was a wholly domestic matter. The surveillance program, by contrast, monitors international communications between the United States and other nations.

Um, yeah. Also, Truman tried to seize the steel mills in order to prevent a strike that he thought might interfere with the war -- whereas the NSA intercepts are direct warmaking actions to gather enemy intelligence: as Hinderaker said earlier (more or less paraphrasing the president), "If al Qaeda is calling you, we want to know why."

Justice Jackson's concurring opinion set up a formulation for the strength of a president's power:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate....

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain....

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

(The Left claims, of course, that the Foreign Intelligence Surveillance Act (FISA) forbids any "wiretapping" without a warrant -- but see below -- and that therefore, the president's power is Type III: "incompatible with the expressed or implied will of Congress," thus "at its lowest ebb.")

"It is not entirely clear why Justice Jackson's concurrence has had such a lasting impact," disingenuously muses the Times; for it is completely obvious why: because that concurring opinion is all that the Democrats have to throw against the commander in chief's obvious Article II power to fight wars. Therefore, they're going to keep waving it as a bloody shirt to urge on the masses.

Returning to Hinderaker's post on Justice Jackson's concurring opinion and its possible application to the NSA case, John begins his analysis so:

In my opinion, reliance on this analysis by critics of the NSA programs is misplaced, for several reasons.

The reasons he cites are quite persuasive:

It was a concurring opinion that no other justice joined.

The decision in Youngstown was a no-brainer: "if a President's constitutional powers allowed him to formulate and carry out domestic policy, including the seizure of private property, by executive order, then the President really would be a dictator," sayeth Brother John.

The argument turned more on the president's charge to "take Care that the Laws be faithfully executed" than his powers as commander in chief.

It isn't clear that Jackson's discussion and his three-scenario formulation were ever meant to apply to the president's war-fighting powers: "Jackson lays out his three categories before he specifically addresses any of the executive's Article II powers, then begins by talking about the President's exercise of 'the executive Power.'"

The Court rejected the claim that Truman's powers as commander in chief allowed him to seize the steel mills on the grounds that that was a purely domestic action -- but the NSA intercepts are of foreign-originating calls and e-mails.

Even Justice Jackson himself appears to agree with Hinderaker on that last point. As John quotes from Jackson's opinion...

(Note: for reasons known only to themselves and perhaps God, the fine fellows at Power Line have taken to using three asterisks [ *** ] instead of the normal ellipsis [ ... ] to indicate words clipped out. They don't mean such passages are attended by three footnotes!)

There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.***That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.***

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.

Finally, one last comment. The Times article concludes with a backhanded legal opinion on FISA that appears, facially, to be utterly false:

The third category is where the president takes action at odds with the will of Congress. A 1978 law, the Foreign Intelligence Surveillance Act, appears to require court approval before monitoring of the sort the administration has acknowledged.

In fact, it says no such thing, as John pointed out in yet another Power Line post (I feel so inadequate):

UPDATE: If the program is as the President described it, and the interceptions are carried out overseas, then it is outside the scope of FISA. See the definition of "electronic surveillance" to which that statute applies, 50 U.S.C. Sec. 1801(f):

John then lists the four-part definition of "electronic surveillance," as used by FISA, no part of which appears to apply to the NSA intercepts, assuming we have been given correct information by the White House. The "electronic surveillance" that has been "acknowledged" by the Bush administration does not, thus, "require court approval" or warrant of any kind.

So the entire New York Times take on the NSA intercepts is wrong on its face, and needn't even reach the question of whether an act of Congress (such as FISA) can override the president's residual, plenary powers as defined in Article II of the Constitution.

November 1, 2005

Alito Lit. 101

Injudicious Judiciary

Hatched by Dafydd

There are two main cases tried by Supreme Court nominee Judge Samuel Alito that will whip all the Democrats into a froth of hysteria. First, Patterico has a great analysis of Planned Parenthood v. Casey, Alito's dissent from a ruling that reaffirmed but rewrote Roe v. Wade.

Second, John at Power Line does the same for another major case that has gotten a lot of attention: Alito's dissent from a decision that rejected dismissal of a lawsuit against police officers for "strip searching" (by a female cop, of course) a mother and her ten year old daughter who were found in a methamphetamine den (Patterico adds his own two centavos worth, disagreeing with John Hinderaker about Alito's dissent but agreeing that there was nothing terrible or even untoward about it).

These will likely be the two lines of attack by leftists against Judge Alito; we should read up on them to gird ourselves for battle.

October 31, 2005

Judge Alito -- Breaking News!

Injudicious Judiciary

Hatched by Dafydd

According to Hugh Hewitt, Charles Schumer is "slowing" the nomination of Judge Samuel Alito to the Supreme Court; I haven't yet seen this in print, but he did say that "it is a question" whether Alito would "reverse much of what Rosa Parks and so many others fought so long and so hard to put into place," as reported by Hugh. (I just heard the audio clip of Schumer using this phrase, so it's not just Hugh's word.)

Hugh had the same idea as I on the point of the delay: it's not out of any idea that Schumer and the other rejectionists could gather enough support to stop Alito's confirmation; rather, they hope to delay his confirmation long enough that Sandra Day O'Connor, not Samuel Alito, will decide the two abortion cases that will be argued in November.

But Hugh also reports that Lindsay Graham (R-SC) has as much as signalled that he will not support a filibuster against Judge Alito, and that he will support the "constitutional option" if the Democrats try. And just now, I heard with my own ears (not someone else's ears) Senator Mike DeWine (R-OH) explicitly say that he sees nothing in the way of "extraordinary circumstances" in the Alito nomination and that DeWine too would support the constitutional option if the Democrats filibuster.

That means two members of the Gang of Fourteen (specifically, the Seven Dwarfs contingent) have now come out in favor of the constitutional option -- banning judicial filibusters altogether -- if the Democrats filibuster Alito, as Patterico long-ago predicted the Democrats would for anybody that Bush nominated to his second Supreme Court opening.

Assuming that neither Arlen Specter (R-PA) nor Chuck Hagel (R-NE) would refuse to pull the trigger on that option, that means that the Democrats can get no more than five Republicans to vote against it... and that is not enough; with Dick Cheney's tie-breaking vote, the rules change would in fact pass. (Assuming, that is, that no Republican is unable to make the vote due to illness.) Though I'm also a bit concerned about Chuch Grassley (R-IA),

I am convinced that Specter, in his present capacity as chairman of the Judiciary Committee, could not reasonably vote against the constitutional option in the context of a Democratic filibuster against Alito. So we need to get one more Squish on record out of the following group: John McCain (R-AZ), Chuck Hagel, Lincoln Chafee (R-RI), Susan Collins (R-ME), Olympia Snowe (R-ME), and John Warner (R-VA). I suspect Hagel, McCain, and Warner will make it clear before the hearings that they see no "extraordinary circumstances" in the Alito nomination.

It's looking good. The only question is whether the Democrats go ahead and force a filibuster, thus allowing the Senate to ban such tactics, or whether they read the tea leaves and drop the idea, just to keep that possiblity open for the future. (But who would they be waiting for, other than Samuel Alito? Is there anyone reasonably imaginable that Bush could nominate who would be worse for the Democrats than Alito?)

AP Sez Alito! -- and It's Now Official

Injudicious Judiciary

Hatched by Dafydd

AP says that President Bush has selected Judge Samuel Alito to replace retiring Justice Sandra Day O'Connor on the Supreme Court. And President Bush is currently announcing Judge Alito's nomination even as I type these words.

Here is Alito's c.v. from the Federal Judicial Center:

Born 1950 in Trenton, NJ

Federal Judicial Service:
U. S. Court of Appeals for the Third Circuit
Nominated by George H.W. Bush on February 20, 1990, to a seat vacated by John Joseph Gibbons; Confirmed by the Senate on April 27, 1990, and received commission on April 30, 1990.

Education:
Princeton University, A.B., 1972

Yale Law School, J.D., 1975

Professional Career:
Law clerk, Hon. Leonard I. Garth, U.S. Court of Appeals, Third Circuit, 1976-1977
Assistant U.S. attorney, District of New Jersey, 1977-1981
Assistant to the U.S. solicitor general, U.S. Department of Justice, Washington, DC, 1981-1985
Deputy assistant U.S. attorney general, U.S. Department of Justice, Washington, DC, 1985-1987
U.S. Attorney for the District of New Jersey, 1987-1990

Race or Ethnicity: White

Gender: Male

(To find this, go here and type alito,samuel in the text box, and press Enter; click on the link that appears.)

I would love to see Patterico scramble to explain this post! Relevant quote:

If you believe this commenter at Confirm Them, Alito is out because Arlen Specter doesn’t like him. [Please see both updates to this post.]

Good Lord. Does Bush want Specter’s blessing or that of his base? Because they’re not the same thing.

Has he learned nothing from the Miers debacle?

Heh... we went from "if you believe" to "has he learned nothing -- ?" in just five sentences!

Patterico reminds me of Mark Twain's story about a cat who sat on a hot stove. It was such a painful lesson that he never sat on a hot stove again.

October 28, 2005

Where To?

I supported Harriet Miers' confirmation (with, as I said, caveats) because I thought it was bad for the party if she were rejected or forced to withdraw.

She was of course forced out, and I do believe damage has been done to the party -- hence to the country, because the Democrats are so wretched and such appeasers that anything that gives them political support is, I believe, bad for America. (If in the future they find their way back home to sanity, I will withdraw this sentiment.)

Damage has been done; do not be deceived. But repairs are still possible... if we act swiftly.

Clearly, the president must nominate someone who is acceptable to the judicial conservatives, but also someone who will not so turn off the Seven Dwarfs that they refuse to pull the trigger on the Byrd option, stopping a filibuster. That is not an easy task.

Hugh Hewitt suggests Michael McConnell. He is trying for an end-run in this case: McConnell was not filibustered last time around; the J-Com sat on his nomination for more than a year, but that was because of Jumpin' Jim Jeffords, Republican Democrat from Vermont, who gave the chairmanship to Patrick "Leaky" Leahy. (What with Leahy and Fitzgerald, I have decided that from now on, I will be instantly suspicious of anybody named Patrick.) Hugh's idea is that, having refused to filibuster McConnell in 2002 -- he was confirmed after the election which gave control back to the Republicans, but before the new Congress was even seated! -- the Gang of 14 would find it very hard indeed to yell "extraordinary circumstances" now in 2005. Thus, Hugh reasons, they wouldn't get the votes they need to stop cloture; so the "nuclear option" wouldn't even come into play.

Numbers, numbers, numbers. Both sides are plagued by numbers. Most Republicans (I think) want to eliminate judicial filibusters altogether. The principled argument is that the Senate has a constitutional duty to advise and either consent or reject in a timely manner. The filibuster leaves the nominee in limbo, neither confirmed nor chucked out -- and is an abdication of Senatorial duty. If he were rejected, the president could name another nominee; but with the nomination still pending, the slot just stays open. On the Supreme Court, that would mean an eight-justice panel that could end up splitting 4-4 endlessly, leaving appellate court rulings in place -- even when they contradict each other from circuit to circuit.

But to get this passed, they need at least 51 votes, one of which can come from Vice President Dick Cheney if the Senate splits 50-50. There are 55 Republicans in the Senate; so they can lose up to five Republican senators and still vote to end judicial filibusters; but if they lose six, they lose the vote (I am assuming no Democrats will vote for the Byrd Option).

The "Seven Dwarfs" (Republican members of the "Gang of 14") are John McCain (AZ), Mike DeWine (OH), Lindsay Graham (SC), John Warner (VA), Olympia Snowe (ME), Susan Collins (ME), and Lincoln Chafee (RI). Two others not in the Gang but still potentially trouble are Arlen Specter (PA) and Charles Grassley (IA).

I believe Chafee, Snowe, and Collins are very likely defectors on this vote; so the GOP can only afford to lose two out of the remaining six worrisome senators in order to push this through.

But the Democrats have their own numbers to fret about. They need 41 votes to sustain a filibuster (that is, to deny cloture, the calling of the question), and the Democrats have only 45 members in their Senate caucus. I believe that for any reasonable nominee, no Republicans (not even Chafee) will vote to filibuster... thus, the Democrats can only afford to lose four of their number and still possibly prevent cloture. For a popular candidate, they may have trouble with some of their own members of the Gang (the Seven Skunks?), including Ben Nelson (NE), Joe Lieberman (CT), Mary Landrieu (LA), Ken Salazar (CO), and Mark Pryof (AK); plus there are other "red-state" Democrats, such as Bill Nelson (FL) and Kent Conrad (ND). The Democrats must hold four of these seven to be able to sustain a filibuster.

Hugh thinks that there will be too many defections from the Democratic side for Judge Michael McConnell, and they will not be able to get their 41. I take a different tack, since I am always willing to consider politics, so long as it's not at the expense of the party or country. I would rather see Emilio Garza as the nominee, even though he is 58 years old (to McConnell's 50), because -- I will be very naked about it -- Hispanics are a very fast-growing voting group; they tend to be more culturally conservative than blacks, Asians, or Jews; and they have shown a willingness to vote Republican -- as much as 45% may have voted for Bush in 2004; so I want to see them encouraged by a Republican Party that recognizes their contribution. Since even the Rebel Alliance has said in the past that Garza is acceptable, I see no reason not to consider politics when deciding between two candidates who both earn the seal of approval. After all, if you don't win presidential elections, you don't get to name any judges at all.

Regardless of who is "at fault" in the Miers debacle, Bush must move swiftly to repair the breach in the GOP coalition -- both the elections coalition and the ruling coalition. He must nominate someone who will mollify the judicial conservatives, but he cannot nominate someone who will scare off the weak sisters in the Seven Dwarfs. He owes us that much.

But we also owe a duty to the president. If any one group tries to completely take over, it will shatter the coalition, and we may well see Chairman Leahy in the Judiciary Committee... in which case, no appointment will move, not even to the Supreme Court. The power of the chairman to disrupt and delay confirmation hearings is almost absolute.

The Rebel Alliance must be satisfied with anybody reasonable. If Garza or Edith Jones is nominated, they cannot say "no, we demand Luttig!" And the Seven Dwarfs must not insist upon a "consensus" candidate who would be, in reality, impossible to find: nobody who is acceptable to Patrick Leahy (VT), Joe Biden (DE), Ted Kennedy (MA), Chuck Schumer (NY), and Dick Durbin (IL) is going to be acceptable to Orrin Hatch (UT), John Kyl (TX), Sam Brownback (KS), or Tom Coburn (OK). It's just not possible: they have such disparate worldviews that "never the twain shall meet."

Both sides of the recent rift -- the White House and the Rebel Alliance -- must reach across to the other. So long as Bush makes a serious effort to find someone with a track record of judicial conservatism, the Rebels should stand behind the president and his nominee and push to get him or her confirmed. Not only that, but I believe the rank and file Republicans need to be much more proactive in helping pass the president's agenda, even if they don't believe in each and every single plank: there is such a thing as compromise... if all the nativists refuse to support Bush because he won't round up all twelve million illegal immigrants and ship them back by parcel post, and all the fiscal conservatives refuse to support Bush because he didn't veto the Highway bill, and the religious Right turns their backs (or sits on their hands in 2006) because Bush hasn't brought prayer back into the schools, while the libertarian Republicans take a walk because he won't fund stem-cell research... well, "there was nobody left to speak out." Say hello to President Dean and a Democratic Congress.

And then none of these groups gets what they want -- though they may end up getting what they deserve.

Remember what Benjamin Franklin said: "We must all hang together, or assuredly we shall all hang separately." Franklin meant it literally, which, thank God, we no longer have to fear; but if you hang the Republican president out to dry, don't be surprised if you find that your own prospects wind up wilting on the same clothesline.

October 27, 2005

Miers Withdraws From Supreme Court Consideration

Injudicious Judiciary

Hatched by Dafydd

As expected, President Bush did not withdraw her; from what I have read, Harriet Miers withdrew herself.

At this point, the best thing for the party would be if Bush were to nominate one of the hard-core judicially conservative women whose names have been floated... and I hope he does; but Hugh Hewitt's prediction of the Democratic response has already come true:

Under withering attack from conservatives, President Bush ended his push to put loyalist Harriet Miers on the Supreme Court Thursday and promised a quick replacement. Democrats accused him of bowing to the "radical right wing of the Republican Party"....

"The radical right wing of the Republican Party killed the Harriet Miers nomination," said Senate Democratic leader Harry Reid of Nevada, who had recommended Miers to the president.

So the question is, will the "Gang of Fourteen" use the replacement of Miers with (say) Priscilla Owen or Janice Rogers Brown to declare "extraordinary circumstances" and vote against the Byrd option, allowing judicial filibusters to continue? Or will they inform Bush that they plan to do so -- pushing him to nominate someone like Alberto Gonzales instead? I'm not sanguine about the possibilities.

Hugh made another prediction -- well, more accurately, he proposed this as a possibility and asked whether the Rebel Alliance would accept a measure of responsibility if it happened. AP raises the same issue; are they reading Hugh's blog?

On Nov. 30, the court will hear arguments on New Hampshire's parental notification law for abortion, which a lower court said is unconstitutional because it lacks an exception allowing a minor to have an abortion to protect her health. O'Connor has been expected to vote to strike down the law. That case also could determine the legal standard for challenges to other states' abortion laws.

Also in late November the court may decide whether it will hear the Bush administration's appeal of a 2003 federal law that bans the type of late-term operation known as partial-birth abortion. Lower courts have said the law is unconstitutional, because it lacks a health exception.

So if one or both of these cases turns out to be a 5-4 decision to uphold the lower court with Sandra Day O'Connor in the majority -- and if there is at least a pretty good chance that Miers would have voted the other way... then is it unfair to say that it was the anti-Miers opposition that took away parental notification and/or a ban on partial-birth abortion?

(I believe that if the new justice is seated after those cases are heard, he or she cannot participate in the decision... which means the Court may well split 4-4, leaving the lower-court rulings in place. Am I wrong?)

October 26, 2005

Waiting for Anita

Injudicious Judiciary

Hatched by Dafydd

Wo will step forward to be the conservative "Anita Hill?"

Fourteen years ago, a specter was haunting Liberal-land... the specter of Clarence Thomas. A conservative black man was nominated to the Supreme Court, and this was anathema to the plantation politics of the Left.

Worse, they could not bork him the way they had borked Bork: he made manifestly absurd claims -- for example, that he had never thought about Roe v. Wade or discussed it with anyone -- but nobody forthcame to credibly dispute him. The liberals, led by Howard Metzenbaum (D-OH), had thrown every negative thing they could find at Thomas, "cherry"-picking the worst statements they could wrench out of context and hit him over the head with, but he had survived, albeit with a split 7-7 vote out of the Judiciary Committee. It was clear that notwithstanding the Democratic majority, the full Senate was going to confirm him. The Democrats were faced with a crisis: something had to be done, and fast.

As David Brock ably demonstrated in the Real Anita Hill -- before he went mad -- frantic liberals recruited a young lawyer who had worked for Thomas, Anita Hill, to make a false charge of sexual harassment. Realizing the flimsiness and absurdity of the charge, they first tried to get Thomas to withdraw; failing that, they tried to float the charge anonymously, hoping to derail Thomas's approval without ever having to reveal the weakness of their hand.

When he refused to withdraw, his nomination was wrenched back to the J-Com for hearings, chaired by Sen. Joseph Biden (D-DE). Senators, including some Democrats, refused to reject him on secret "evidence" without giving him a chance to rebut. At that point, having no alternative, the "shadow Senate" -- a gaggle of left-liberal luminaries and interest groups, including Nan Aron (Alliance for Justice), Kate Michelman (NARAL), Ralph Neas (Leadership Conference on Civil Rights), Judith Lichtman (Women's Legal Defense Fund), Molly Yard and Eleanor Smeal (NOW), Art Kropp and Melanne Verveer (People for the American Way), Benjamin Hooks (NAACP), and Nina Totenberg (NPR) -- and Hill's friend "Judge" Susan Hoerchner prevailed upon Hill to go public.

Hill seemed frightened when called to testify... as well she might be. She was followed by a parade of witnesses that refuted virtually every particular of her claims except those for which there were no witnesses but Hill and Thomas. In the end, the vicious slander melted away in the harsh light of cross examination (mostly by Sen. Orrin Hatch, R-UT). The enemies of Thomas could not keep him off the Court, but the could damage him: the final Senate vote was a bare 52 to 48, the closest judicial confirmation vote of the twentieth century.

Flash forward to today. Today we have another nominee to the Supreme Court, Harriet Miers -- and a different "shadow Senate" equally desperate to stop her... but this time made up of "judicially conservative" pundits, writers, and bloggers, dubbed the Rebel Alliance in Captain Ed's nomenclature. As in the case above, they have thrown everything they could find at her, seizing upon every carefully elided innuendo and artfully worded smear, whether from the Washington Post, the New York Times, or even Sen. Charles Schumer (D-NY) and Sen. Patrick Leahy (D-VT), opiners that on any other issue, these conservative Rebels would utterly scorn. And as with the Thomas case, despite misgivings, no Republican senator has publicly said he will vote against Miers or even that he is leaning that way.

Curiously, and unlike the previous case, the Rebels seem very concerned that Miers be forced out before she even has her confirmation hearings. David Frum just argued on Hugh Hewitt's show that he believes that if she goes to hearings, it will become "obvious" that she is unfit to serve on the Court... in which case, one wonders, why not wait for just that to eventuate? It's hard not to conclude that they're less worried about her doing badly than about her doing much better than expected. Hence they want to force her out beforehand, without giving her a forum to respond. This, then, is precisely analogous to the first moves to force Thomas out without allowing him to confront his accuser.

This is likely to fail; the president is not going to withdraw Miers prior to her hearings. So the next question is whether Republican senators will turn on her. They may; I expect the top Rebels will be funneling bork-worthy smears to senators they hope will be predisposed to reject her. But President Bush may well prevail, and we may be facing a looming J-Com vote where it is clear that Miers has the votes to be recommended, as well as the votes on the floor to confirm.

Now....

That is the moment I await: I want to know... who will be the conservative "Anita Hill" to step forward with some explosive, un-disprovable charge? What form will the charge take? Will the accuser attempt to make the charge anonymously? And will the majority Republicans prove as just as a handful of the majority Democrats did in 1991, voting for Thomas when they could have simply borked him?

I worry about the Rebel Alliance. They have worked themselves into such a frenzy, that it would not be beyond belief were they to decide that stopping Harriet Miers was so important, it justified any means necessary to do so. A new "Anita Hill" is not beyond my imagination.

I hope it doesn't happen; I hope the Rebels rebel against the inevitable suggestion, refusing to sink to the level of the "shadow Senate" of 1991. I like these people; I'm friends with several of them, and I hate having to worry just how far they're willing to go.

October 24, 2005

More Questions to Ask Harriet Miers

I just thought of something that might actually be valuable to the confirmation process, at least to the extent that members of the Senate bother to listen to constructive suggestions.

I hope we all, Loyalists and Rebel Alliance alike, that Republicans should not stoop to asking Miss Miers how she plans to vote on various pending cases. But on the other hand, as George Will noted -- broken clock, right twice a day (or once if it's military time) -- it would be very useful to ask her questions to elucidate her judicial philosophy.

So I had a brain storm. Not quite Hurricane Delta, but maybe something better than a tropical depression: what historical cases can we find -- none dating after 1960 (year arbitrarily picked for personal, sentimental reasons related to someone I greatly love) -- that would illuminate the judicial philosophy of any nominee who analyzed them?

I suppose you could start with Marbury v. Madison, but that would be silly, since I think any contemporary nominee supports judicial review, at least in theory. But how about comparing Plessy to Brown? Or that case (whose name I always forget, not being a lawyer) that held that even wheat grown for personal consumption could be regulated under Congress's interstate-commerce grant of authority... would a Court nominee's thinking on that case be illuminating?

There must be a number of other cases that Miers could analyze without running afoul of the prohibition against prejudging -- the cases arising out of the Japanese internment? early free-speech cases? some of the "incorporation doctrine" cases? -- that would tell us something significant about how she thinks. (Ideally, since I want to hear a considered opinion, rather than a game of gotcha, I'd prefer the list be given her in advance, so she could research and ponder them.)

But I'm not a lawyer, so I certainly cannot compile a list of the top of my triangular head of the most important, most illuminating cases: can some of you blogospheric attorneys please offer up suggestions?

If you can explain its importance to a non-lawyer such as me, I'll update this post to include a list (with links) at the bottom; but if you just say the name and nothing else, I will ignore it, since I've probably never heard of it -- I have absolutely no intention of briefing these cases myself!

I call upon you,Patterico -- and upon Bill Dyer, John, Scott, Paul, Glenn, Hugh and any other attorneys or law profs. And even non-lawyer deep thinkers about constitutional issues... Captain Ed? Please either comment here or on your own blogs with a trackback here, and I'll compile the list and try to figure out how to get it to J-Com senators who might find it useful.

(Every time I do this, I get a good comment from Pat, very occasionally something fascinating from Beldar, and everybody else just ignores me. But, ever the optimist, I shall try and try again....)

Thanks!

UPDATE: All right, our first batch of cases to ask Miss Miers about has come in. Fort Wit:

Griswold v. Connecticut, 381 U.S. 479 (1965) - the case that found a right to privacy emanating from the penumbra of various other rights; this case was suggested by both Captain Ed and also commenter Diffus. (Technically, this falls outside my arbitrary line, and it's a bit too contemporary and likely to come up again in subsequent cases... so this one may be out).

Plessy v. Ferguson, 163 U.S. 537 (1896); Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) - the first found that public schools could be segregated on the principle of "separate but equal;" the second overturned the first, finding that no such scheme was possible, and that the Civil Rights Amendments required desegregation. Captain Ed (in the same post as supra) seconded my suggestion of these above.

New York Times Company v. Sullivan, 376 U.S. 254 (1964) - this case found that in cases of libel or slander involving public figures, the standard that had to be met was "actual malice" (I thought "reckless disregard for the truth" was also a possible standard... do I misremember?) Suggested by Patterico, in the comments. (Also inside the "red line" of 1960.)

Wickard v. Filburn, 317 U.S. 111 (1942) - the "wheat" case I mentioned above; Unabrewer has been suggesting this one as a question since long before this post!

United States v. Miller, 307 U.S. 174 - Miller was convicted of possessing a short-barreled (sawed-off) shotgun; he raised the Second Amendment, but the Court ruled that no evidence had been presented that this type of weapon was normally found in army or militia units, so was not covered by the right to keep and bear arms. That is, they held that the RTKBA covered all military style weapons, presumably including so-called "assault weapons."

TriggerFinger suggested this one, and it's a good suggestion, as this case has been wildly misconstrued by virtually every appellate court that has cited it since it was decided in 1939: typically, appellate courts wrongly claim that the Court held that only members of the National Guard qualified as militia, and the Second Amendment applies only to them. The Court itself revisited this issue in 1990 in United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990), clarifying in dicta that "militia" standing of the gun owner has no bearing on the right.

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) - a very bad decision decided very badly; lots of juicy constitutional issues in this case, only the second time the Court had struck down a federal law as unconstitutional... and in my mind, the prototype for judicial activism of the worst kind. Suggested by moi.

Great start, guys -- let's get some more folks to weigh in on this one!

(Some have misunderstood the exercise: it's not just to think of questions, but specifically landmark Supreme Court cases from long ago... so that Harriet Miers can analyze them and clarify her judicial philosophy without worrying about compromising her ability to judge future cases that come before the Court.)

I Support the Miers Nomination

...With caveats and pending her performance in the hearing. Actually, the real reason I'm participating is that I'm vey curious to see whether her confirmation hearing changes any minds -- and in which direction! I hope NZBear has the wisdom to rerun his scavenger-bot after the hearing is over and see how things have shifted, one way or another. If at all.

So here's my vote, and we'll see what happens.

(Note, this post took six minutes from soup to baklava... but that doesn't quite break my speed record for putting up a post!)

October 23, 2005

George Will: the Old Maid in the Popcorn Bag

Injudicious Judiciary

Hatched by Dafydd

Those of us who support the nomination of Harriet Miers (even reluctantly) were warned repeatedly that we would be devastated, blown away, and inundated by the Noahide deluge of Hurricane Gamma, George Will's unanswerable final whirlwind of rhetorical devastation of Harriet Miers. Instead, all we got was a spritz of seltzer down our pants.

Will's meticulous retailing of yawn-inducing epithets ("perfect perversity," "discredits," "degrades," "justifications," "deficit of constitutional understanding," "gross misunderstanding of conservatism," and "persons masquerading as its defenders" -- all from the first paragraph!); his hand-waving dismissal of counterargument (his entire final paragraph -- see below); the by now comical snobbery ("crude people"), looking down a sharpened beak at the ants crawling about his Ozymandian feet; all this does surely leave me breathless... but with an amazed sense of loss, not cowed submission.

Lately, Christopher Hitchens has turned into the most articulate defender of the global war on terrorism in the administration. Well actually, outside the administration; but he may as well be a presidential spokesman. Hitchens' denunciations of the Left's politics of bending over coupled with their moist invective of personal destruction -- which now takes the place of any attempt at rational debate of the war, its history, purpose, and effect -- has made him, much to his discomfort, the Cassandra of the death of Socialism as a serious force in world affairs: he sees where his beloved Left is headed and what is going to happen, but he cannot get them to beware of Moslems bearing rifts. No more eloquent spokesman for the conservative virtues of liberal western democracy now exists than Chris Hitchens, which must drive the poor man mad.

Did space aliens sneak down and switch the souls of the two polemicists, Will and Hitchens?

I rummaged through George Will's column looking for the big pop; instead, I'm holding just an old maid in my hand: the kernel is barely cracked, just enough to release its meagre store of steam, not enough to burst open and rattle the pot with its noise. The cherry bomb that fizzled. One of my mother's sneezes, where she gasps for air, teary eyes as wide as millstones; she flaps her arms and turns fire-engine red -- then nothing more than the squeak of a deferential churchmouse.

Oh, I cannot stand it. Let's jump right into some of Will's incisive invective.

Such is the perfect perversity of the nomination of Harriet Miers, it discredits, and even degrades, all who toil at justifying it.... Other arguments betray a gross misunderstanding of conservatism on the part of persons masquerading as its defenders.

Miers' advocates, sensing the poverty of other possibilities, began by cynically calling her critics sexist snobs who disdain women with less than Ivy League degrees.

Practically the first words out of Will's pen betray the very quality of discrimination that has served him so admirably for so long... until now, in his dotage. Which "Miers' advocates" would those be? Anyone in particular? In this case, a careful study of the record reveals that these advocates consist of Ed Gillespie -- assuming one is willing to look at a cap gun and call it a Howitzer. Will bravely shoulders that duty: so Gillespie said (according to Will) not only that "her critics" (all of them?) were "sexist" but that they were "snobs" as well.

Did Gillespie say "snobs?" Did anyone? I'm certain someone must have... and in the new world of Will's rhetorical cannonade, that is enough; what was said by one was said by all.

No longer can Will discriminate between one charge (sexism) and another (snobbery), or even between one man and another. Would collectivism be one of those new understandings of conservatism of which Will rises in defense? Alas, in George Will's case, this may not represent degeneracy: a man who calls himself a "Tory" can hardly claim the mantle of Ronald Reagan, or any other American conservative, can he? He rises and falls with the collectivist nature of Europeanism, where even parties on the right see people only as ordinals, never cardinals.

The sharpest piece of recent political dissection I have read is William F. Buckley, jr.'s "In Search of Anti-Semitism," the lengthy essay that underpinned the all-antisemitism issue of the National Review. In the essay, Buckley managed to disciminate between Joe Sobran, whose anti-Zionism, Buckley concluded, had metastasized into full-bore antisemitism -- and Patrick J. Buchanan, who Buckley absolved of that sin (at that time; revisiting, he might come to a different conclusion today). That is, Bill Buckley treated the two as individuals, not as representatives of some class of people.

The latter precisely describes Will's entire sloppy column; it is "Crown Heights" reasoning, named after the infamous New York pogrom: when a car in the motorcade of Rabbi Menachem Schneerson ran a red light in Crown Heights, New York City, striking and killing a seven year old black child named Gavin Cato, a mob of black residents, vowing retaliation, went and found the nearest Jews they could and assaulted them. Two men were murdered: Yankel Rosenbaum, for being Jewish -- and Anthony Graziosi, for looking Jewish. It mattered not to the rioters who actually drove the car or whether the collision was intentional; one Jew (or bearded man in black) was the same as any other, and intentions are always irrelevant in tribalist warfare.

Thus, if Ed Gillespie says something that can be interpreted as tarring all critics, including conservative ones, with the brush of sexism or elitism, it is right and proper to today's George F. Will to lash out in retaliation against all "advocates" of Miss Miers' nomination (that is, advocates of waiting to hear what the woman has to say in the hearings). We are all "degrade[d]," we are all guilty of Gillespie's sin, all including Hugh Hewitt and Bill Dyer and Dafydd ab Hugh -- regardless whether Gillespie even meant what Will inferred; intentions are irrelevant to Will.

(But not to Amy Ridenour. Displaying a willingness to listen that eludes Prince George, she writes:

(I just received a gracious phone call -- especially considering what I have been writing -- from Ed Gillespie. He made a compelling case that he was not referring to conservatives when he referred to some critics of the Harriet Miers nomination with the terms "sexism" and "elitism," but to others who said things that, when he described them, did sound rather sexist and elitist.... I believe him when he says he didn't means us with those words.)

Worse, Will's simplistic denunciation does not even understand the charge -- of which he, more than anyone, is truly guilty. The "elitism" or "snobbery" charge is not that the Rebel Alliance looks down upon Miers because she graduated from Southern Methodist University; the charge is that her critics insist that only a person who is a particular kind of professional legal intellectual qualifies for the Supreme Court. Those who make that argument are fond of analogizing the Court to brain surgery; Charles Krauthammer (another snob) japed on Brit Hume Friday, if you needed brain surgery, would you go to a podiatrist? But the Court was never intended to be the supreme legal university; if judicial conservatives are to be believed, the primary purpose of the Supreme Court is to adjudicate disputes, not churn out postdoctoral dissertations on arcane and occult points of constitutional doctrine.

But I must not spend forever on a couple of sentences (though I could). Here is Will's refined elucidation of Miers advocates as know-nothings:

In their unseemly eagerness to assure Miers' conservative detractors that she will reach the ``right'' results, her advocates betray complete incomprehension of this: Thoughtful conservatives' highest aim is not to achieve this or that particular outcome concerning this or that controversy. Rather, their aim for the Supreme Court is to replace semi-legislative reasoning with genuine constitutional reasoning about the Constitution's meaning as derived from close consideration of its text and structure. Such conservatives understand that how you get to a result is as important as the result. Indeed, in an important sense, the path the Supreme Court takes to the result often is the result.

By contrast, Miers' advocates (all of them) must understand none of this; I'm sure Will's clarification comes as an eye-opener to Hugh Hewitt, for example. In an earlier piece, Will was more explicit:

[President Bush] has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their prepresidential careers, and this president, particularly, is not disposed to such reflections.

This is the high-verbal lynching carried to the point of low comedy.

Of course a judge must understand the Constitution; but caselaw (common law) is equally important, including an understanding of contracts, torts, legislation (state and federal), and every other area of the law besides con-law that might pop up in a legal dispute. Nobody is an expert in all; every justice must rely on the writings of specialists (often previous judges that they quote at length... at great length).

But equally, every justice must look within himself to decide where he lands when the experts disagree -- which inevitably is always. Judicial philosophy is indeed important, as judicial conservatives and liberals alike argue; and contrary to Will's later snoot-cocking, I do not consider it "inappropriate" for senators to inquire into the nominee's opinions on past cases to determine her judicial thinking. But the "brain-surgery" analogy is infantile; it paints judging as merely a narrow technical skill, rather than a balancing act of competing verities that collide in the instance of a single set of facts.

Reducing the Court to a gaggle of lecturing professors is not only offensive, it's a blunder. Intellectuals, especially truly clever ones, can talk themselves into anything. There is good reason why so many of the brightest lights of the twentieth century talked themselves into joining the Party -- but Ronald Reagan never did. Room must be made on the Court for a person grounded in sanity and the real world, rather than airy theory and lugubrious rhetoric.

Harriet Miers may very well not be that person; I do not know her -- that is the best argument for the Rebel Alliance, that nobody really knows her but George W. Bush. But Will could drip the same sneer with equal indiscrimination onto anybody who fit the Ronald Reagan profile, not simply Miss Miers: if you are not an effete, egocentric, snide, condescending, etherial, arrogant, elite intellectual -- preferably, one who sports the ridiculous affectation of a bow tie -- then you need not apply for the position, in Will's determination.

His argument is sloppy, ugly, and self-important. But can we really expect more from a man who accepted the twin lures of lucre and the chance to strut and fret on a weekly basis in order to stay on at This Week? Will remained long after all the real journalists had left, throwing in his lot with the limp-brained, talentless, preening, no-count, wriggling, pencil-necked, geeky political hack George Snuffleupagus to carry the torch of David Brinkley forward into the twenty-first century.

This is Will's brave, new world, the tiny pond in which he chooses to shimmer. He holds court in Chevy Chase (not quite in but definitely of the Beltway) -- in the pages of the Washington Post -- on the set at ABC treating a former Clinton campaign operative as his journalistic equal (he is probably right) -- looking down his bespectacled nose at the lower classes, such as evangelical Christians (the "crude people" who resort to the "incense defense" of Harriet Miers) -- and whose favorite political figures are all from Europe... yet he has the chutzpah to pontificate to the rest of us about the nature of conservatism. Will, who never attended law school, lectures us on the duties of those who would interpret the law. He is not a minister, but he incessantly enunciates the Gospel of St. George, in which the only mortal sin is to be "unseemly."

I am astonished that Will did not openly campaign for John Kerry, they are so much alike. Perhaps Will was put off by Kerry's overemphasis on athletics: except for baseball, which Will sees as "contemplative," a form of meditation, perhaps, he seems uncomfortable with exhibitions of manhood.

In the end -- the last paragraph -- Will anticipates that some conservatives (or in my case, anti-liberals) may have the bumptious presumption to disagree with his assessment. He prepares for that eventuality with the classically liberal best defense: the cerebral threat.

As for Republicans, any who vote for Miers will thereafter be ineligible to argue that it is important to elect Republicans because they are conscientious conservers of the judicial branch's invaluable dignity [almost as good as seemliness]. Finally, any Republican senator who supinely acquiesces in President Bush's reckless abuse of presidential discretion -- or who does not recognize the Miers nomination as such -- can never be considered presidential material.

Well! Who could argue with that?

This column is a sad chapter in the long twilight denouement of George Will's career. I doubt the Rebel Alliance can see its errors; they have long since dropped into a form of tribalism themselves, in which any anti-Miers remark is embraced as a sacrament, even if it comes from Arlen Specter or Patrick Leahy (the new arbiters of conservative judicial competence). Doubtless, the Alliance will seize upon the Will piece to wave as they lurch through the streets, sharpened writing quills in hand, looking for some "Miers advocates" to stab (any will do). See how easy collectivist caracature can be?

October 17, 2005

What I Would Ask Strict Constructionists

Injudicious Judiciary

Hatched by Dafydd

(Or whatever they choose to call themselves.)

Would it be unconstitutional for a state legislature to enact a law banning all vaccination within the state?

If one did, would any court at any level be allowed, under your judicial philosophy, to overturn such an insane act? Would Congress be constitutionally allowed to do so, under any element of the grant of rights in Article I, Section 8?

If your answer to either of these is Yes, doesn't that entail some level of judicial activism... in a good cause, of course? And if the answer is No and No, those kids just gotta die of polio, diptheria, and typoid fever... then doesn't the whole philosophy of governance fail the most basic test of preserving the citizenry's life, liberty, and pursuit of happiness?

I was inspired by Dennis Prager's remark at the KRLA Talkfest yesterday that "purists can ruin great movements." I believe that absolute blind purity of essence in even a movement such as originalism (by whatever name) is destructive of the very goals it was designed to foster.

What I Would Ask Miers

Here's a burning question that I would ask Supreme Court nominee Harriet Miers, were I a senator... not because I think she would be bad on this issue, but because the Court has been bad in the past:

Miss Miers; within your judicial philosophy, is there ever a valid situation in which foreign law or jurisprudence -- that has never been formally recognized by treaty with the U.S. -- can nevertheless trump the United States Constitution or American federal or state legislation in American courts?

All right, a lawyer would phrase it more bulletproof, but that's the gist. The Supreme Court -- in particular Justices Breyer and Kennedy, I think -- say Yes, lots of situations. I say No, never.

October 14, 2005

New Reason to Support Harriet Miers

Injudicious Judiciary
, Mathemagics

Hatched by Dafydd

I have been pretty much supportive all along, based solely on the grounds that I think it would be bad for the party if she were slammed out of bounds before she even got a hearing. Then I became more strongly attracted to the notion that we really ought always to have at least one justice who isn't a former judge and isn't an "expert" on the Constitution: "convictions make convicts," as Timothy Leary used to say (I mean when he was alive), and experts who spend all their lives studying the writings of other experts in their subject tend to have a very subjective view indeed.

Bush believes Miers is Reaganesque in the sense of having an innate grasp of right and wrong in many circumstances, and I've seen nothing so far from her opponents that persuades me to the contrary. Examples of trivial mistakes or instances of stepping carefully through a landmine are no more persuasive than are the few mistakes Reagan himself made -- such as yanking our "peacekeeping" troops out of Lebanon directly after the Beirut massacre.

But I have just come across evidence that I haven't seen anywhere else... and this now puts me unabashedly in her corner. I now truly hope she will be confirmed.

Major Disclaimer!

I neither confirm nor deny that Patterico at Patterico's Pontifications may or may not have ever blogged on this subject, nor in the case that he has, do I either agree or disagree or even know what he may have said, in the event that he may have said anything about this at all. I am only an egg. I am Sgt. Schultz.

With that out of the way, we may proceed.

I was just reading the Wikipedia biography of Miss Miers, and I came across the following datum that absolutely clinched the decision for me:

Miers graduated from Southern Methodist University with a bachelor's degree in mathematics (1967) and from its law school with a Juris Doctor degree (1970) .

I suspect we have never had a Supreme Court Justice who actually passed classes in differential equations, possibly even partial differential equations -- and five of you reading this know how amazing that would be! -- group theory, Galois Theory, functional analysis, dynamical systems, and probably even mathematical logic. Imagine a justice who understood how to tell a convergent from a divergent infinite series, how to do a LaPlace Transform, and what Fourier Analysis is for! Or even just a justice who is comfortable thinking in N-space.

Harriet Miers has my full and unstinting support (I was about to say unqualified support, but that is too ambiguous).

October 13, 2005

Always My Hero, Cap

Blogomania
, Injudicious Judiciary

Hatched by Dafydd

This --

Despite the idiotic response from the White House prior to this telecon, I'm inclined to support Miers. I don't believe she'll be a disaster, and I think she'll at least improve on O'Connor. I also don't believe she'll get pushed around, but I have to be honest and say I get that impression more from what Hugh Hewitt and Beldar have argued and presented than anything the White House has bothered to do on their own behalf. I've come to the conclusion that spanking Miers over the clumsiness and incompentence of the White House doesn't make a lot of sense.

-- is about the best summary of how I feel that anyone has yet posted, including myself. Thanks, Captain Ed!

Testimonial Tiff

Injudicious Judiciary

Hatched by Dafydd

It's been three days since my last post about Harriet Miers, which I think is a reasonable cooling-off period; I will continue talking about the nomination occasionally, as new issues arise -- and of course, one has just arisen, ergo....

The newest charge, and it's remarkably silly, is that she dissed the Federalist Society in 1990, when she was a defendant in a lawsuit against the Dallas City Council, of which she was a member. None of my favorite blogs has jumped on this one so far, happily enough. But I figure it's important to nip it in the bud anyway!

The lawsuit charged, evidently, that there was some racist plot to keep blacks and Hispanics off the city council. I'm not exactly sure of the facts in the case; keep them off how? It's an elected council, isn't it? But they're likely not relevant to this particular charge against Miss Miers. In the course of the trial, she was subpoenaed to testify, and the following exchange occurred (via the Drudge Report; I'll assume throughout that Drudge is accurate):

Q. Ms. Miers, are you a member of any predominantly minority organizations, such as the NAACP, Black Chamber of Commerce, Urban League or any other predominantly minority organizations?

A. Women minorities?

Q. Well, maybe predominantly racial and ethnic minorities?

A. No.

Q. . . . . In your capacity as an at-large member do you think being involved in such organizations might assist you in having a perspective that -- bring a perspective to your job that you don’t have?

A. I attend meetings designed to give me that input. However, I have tried to avoid memberships in organizations that were politically charged with one viewpoint or the other. For example, I wouldn’t belong to the Federalist Society any more than -- I just feel like it’s better to not be involved in organizations that seem to color your view one way or the other for people who are examining you. I did join the Progressive Voters League here in Dallas during the campaign as part of the campaign.

Q. Are you active in the PVL now, do you intend to be?

A. No, I am not.

Q. Do you think the NAACP and Black Chamber of Commerce are in the category of organizations you were talking about?

Let's get one point out of the way at the start: Miers joined the Progressive Voters League "during the campaign [for the Dallas city council]," in 1989. At that time, as Ed Gillespie has noted, she was a conservative Democrat, perhaps in the mold of former Georgian Governor Zell Miller.

(A year earlier, she had donated money to Al Gore's first presidential campaign -- back then, Gore was an ardent member -- and charter member -- of the Democratic Leadership Conference, the last attempt to lead the Democratic Party back to sanity on issues such as defense and the economy; he was not then the Rantin' Al that we all know and loathe today.)

I'm not a Texan; but my guess is that back in 1989, in Dallas (where the PVL was still strong), it was probably de rigueur for any Democrat running for local office to join the PVL during the campaign; the conservative Dems would probably just drift away after being elected, as Harriet Miers testifies she did.

So let's get to the meat: the Federalist Society, the NAACP and the Black Chamber of Commerce, and why the first could be considered "politically charged with one viewpoint or the other," while the latter two not.

The Dallas Black Chamber of Commerce serves as an advocate for the creation, growth and general welfare of African American business in the Dallas community. The Chamber actively promotes the expansion of public/ private sector business opportunities on behalf of its members through referrals, partnerships, seminars, technical assistance and marketing. We continue to focus on economic and business development, education, convention/tourism, special projects and member services.

(The National Black Chamber of Commerce didn't exist at the time of the lawsuit, being founded three years later; but it has a similar mission statement.) This clearly is a business alliance, not an overtly political organization; it may have been hijacked by the Democrats; many such organizations are, though I don't specifically know about this one. But if so, it's an apolitical organization that was hijacked, not "politically charged with one viewpoint or the other" by its very nature.

The mission of the National Association for the Advancement of Colored People is to ensure the political, educational, social and economic equality of rights of all persons and to eliminate racial hatred and racial discrimination....

The principal objectives of the Association shall be:

To ensure the political, educational, social and economic equality of all citizens

To achieve equality of rights and eliminate race prejudice among the citizens of the United States

To remove all barriers of racial discrimination through democratic processes

To seek enactment and enforcement of federal, state and local laws securing civil rights

To inform the public of the adverse effects of racial discrimination and to seek its elimination

To educate persons as to their constitutional rights and to take all lawful action to secure the exercise thereof, and to take any other lawful action in furtherance of these objectives, consistent with the NAACP’s Articles of Incorporation and this Constitution.

Clearly the NAA(L)CP has been hijacked by the screaming radical Left, and was, though to a lesser extent, in 1990. Arguably, the entire political approach of NAACP founding saint W.E.B. DuBois is far too aligned with the politics of aggrievement, much more so that, e.g., his great rival, Booker T. Washington. But Miers is correct that the organization itself is not overtly partisan-political in nature, any more than is the ordinary Chamber of Commerce -- despite the fact that it undeniably leans to the right.

On paper, neither of these two organizations is overtly "politically charged;" the political charge comes from the personalities who run them, not from the structure or mission. Heck, even I could get behind the mission statement of the NAACP -- if only they, themselves could!

Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.

The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.

The Society seeks both to promote an awareness of these principles and to further their application through its activities. This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, and law professors.

In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community.

The difference is stark. The Federalist Society is specifically and particularly a political-advocacy organization organized against "orthodox liberal ideology" and in support of "a conservative and libertarian intellectual network" within the legal community. In its very nature, it is libertarian-conservative, and it declares liberalism its enemy.

Now, I happen to thoroughly agree with these politics. If I were a joiner, this would be the first organization I would join (the only organization of which I'm an active member is Science Fiction and Fantasy Writers of America, my professional organization). But Miers is absolutely right that the Federalist Society is "politically charged with one viewpoint or the other."

As to whether elected members of a city council should be members of such organizations, I don't see why not; but on the other hand, I was never a conservative Democrat in an increasingly liberal Democratic party, worried about getting reelected, and embroiled in a politically charged lawsuit, as Miers was at that time. At another time and place, she may well have praised the Federalist Society -- and lo and behold, she did exactly that back in April of this year, when she was not under consideration for any judgeship, and indeed no openings on the Supreme Court yet existed: Sandra Day O'Connor did not announce her retirement until July 1st.

So once again, a hurricane in a hatbox. She answered carefully, legally, and correctly under hostile direct examination in a lawsuit back when she was still a conservative Democrat in a way that was calculated not to piss off her constituency any more than necessary. That's all.

UPDATE 11 October 2005 9:29 pm:Before delving into the minutiae of how many miliseconds elapsed between various phrases in Laura Bush's answer, let's all take a step back and look at the big picture. The charge from Michelle Malkin and Captain Ed is, boiled down, that Laura Bush is calling opponents of Miers "sexist." That is, that Mrs. Bush is a liberal.

This is errant nonsense. There is nothing whatsoever in her background that would make us think she is a liberal. In fact, she's likely more conservative than Bush. So please, folks, get a grip. The MSM deliberately misreported this in a way designed to split us further apart... and by golly, it worked! So let's sit down, take a stress pill, and talk this out....

~

This post is not about Harriet Miers; she is merely cosmic background radiation. Rather, I rise as a gentleman to defend the besmirched honor of the First Lady.

A partial transcript appeared in two Washington Post articles (two completely different articles posted one minute apart); the second article (from Reuters) used that micro-bite, which isn't even an accurate transcription, to drive the headline:

COVINGTON, Louisiana (Reuters) - First lady Laura Bush joined her husband in defending his nominee to the U.S. Supreme Court on Tuesday and said it was possible some critics were being sexist in their opposition to Harriet Miers.

Asked by host Matt Lauer if sexism might be playing a role in the Miers controversy, she said, "It's possible. I think that's possible. . . . I think people are not looking at her accomplishments."

Alas, two stalwarts of the conservative blogosphere, Michelle Malkin and Captain Ed, relied upon that bad transcript from the epitome of the MSM to drive stories of their own attacking Mrs. Bush. Malkin was typically brief and cutting:

So, the First Lady pulled out the sexism card in her defense of Harriet Miers on NBC's Today Show.

Matt Lauer lapped it up.

Did the White House not inform Mrs. Bush that some of the most vocal criticism and questioning of the nomination comes from conservative women? Or does she buy into the Left's conservative-women-are-self-loathing-traitors-to-their-gender line, too?

I feel a pile-on coming. Not only against Laura Bush, but a dogpile on me for politely disagreeing with Michelle Malkin. But in reality, having just watched the video up on the Today Show's website (which must be viewed using Internet Explorer 6, evidently), I can say that Malkin's take on this is totally wrong and backwards in every respect.

In the first place, Malkin has the order backwards: it was Matt Lauer, not Laura Bush, who "pulled out the sexism card;" Laura Bush never used the term. Second, far from "lap[ing] them up," Lauer never even returned to the question. I listened to the entire segment, and I particularly played the relevant snippet over and over, trying to get every word even when Lauer, Bush, and Laura Bush were talking over each other. Here is my own transcription of that miniscule portion of the fourteen-minute segment; this part starts at 7:58 into the main segment, but you have to sit through a thirty-second commercial first:

Lauer: [to President Bush] You said she’s the most qualified candidate for the job. [points to Laura Bush] Would you agree with that?

Laura Bush: Absolutely. Absolutely.

Lauer: You had pushed for a woman to be the nominee --

Laura Bush: That’s right. And I know Harriet well, I know how accomplished she is, I know how many times she’s broken the glass ceiling herself. She’s a roll model for young women around our country --

Lauer: Some are suggesting --

Laura Bush: Not only that, she is very deliberate and thoughtful and will bring dignity to, uh, wherever she goes. But certainly to the Supreme Court, she will be really excellent.

Lauer: Some are suggesting there’s a little possible sexism in the criticism of Judge [sic] Miers.

Laura Bush: That’s possible. I think --

Lauer: How would you feel about that?

Laura Bush: That’s possible. I think she is so accomplished that... I know, I think that people are not looking at her accomplishments and not realizing that she was the first elected woman to be the head of the Texas Bar Association, for instance, and all the other things. She was the first, uh, woman managing partner of a major law firm. She was the first woman hired by a major law firm, her law firm.

George Bush: My attitude, Matt, is that when people get to know here, they’ll see why I picked her.

Laura Bush: They will. In the confirmation hearings alone, they’ll, they’ll see what she’s like.

What a difference a single interruption makes! In the deceptive version being pedaled by Reuters and the Post, they have Laura say sexism was possible and then repeat it for emphasis: "I think that's possible." This has the subtextual effect of making it appear certain that the First Lady was agreeing with Lauer's question, that critics were motivated by sexism.

But in reality, Lauer asked the question and paused; Mrs. Bush started to answer and was cut off by Lauer, who finished asking the question... so the First Lady, being a trouper, simply re-commenced her same answer. She did not say "that's possible... I think that's possible;" she dismissed the charge with a curt "that's possible," then started a new sentence on a different topic.

[This is the paragraph that some critics, especially Patterico, dispute most. I did not make my determination by timing pauses with a stopwatch; my analysis is based upon the structure of the response itself: she starts to answer, she is interrupted, and when she answers the second time, she quickly shifts away from the question Lauer asked to the (probably memorized) answer she wants to give, about Miers' accomplishments. She is not repeating for emphasis; she is repeating because the boor talked over her answer. -DaH.]

Listening to the audio, it is clear that she was not agreeing with or even emphasizing the point. In fact, she was brushing it off. She said the most non-commital thing it was possible to say: "that's possible." In fact, if anything, she underplayed it; I have absolutely heard criticism that is clearly sexist... I heard a caller on a recent Hugh Hewitt show say that he opposed Miers because every time we let a woman onto the Supreme Court, she rules just based on her feelings. But Laura Bush simply brushed off Lauer's suggestion and launched into a litany of Miers' accomplishments (which I am not here to argue).

(I just know that somebody is going to argue that she nodded her head as she spoke those words; but then, she actually both nods and shakes her head constantly and randomly throughout her segment. She's bobbing, not nodding. I think it's just nervousness, just like her uncomfortable, little laugh. I don't think she enjoys the spotlight at all.)

Instead [of answers], we get attacked for our supposed "sexism", which does more to marginalize conservatives than anything the Democrats have done over the past twenty years -- and it's so demonstrably false that one wonders if the President has decided to torch his party out of a fit of pique. After all, it wasn't our decision to treat the O'Connor seat as a quota fulfillment; that seems to have originated with the First Lady herself, a form of sexism all its own.

Again, Laura Bush did not call critics sexist. She did not even agree with Lauer that they were sexist. Close examination of the transcript -- or simply viewing the segment -- shows that she brushed off the question and instead simply gushed about what she saw as Miers' accomplishments.

Reuters then creatively massaged her words -- by breaking them up in a non-natural way -- to falsely make it appear as though she were lobbing the "sexist" bomb. And two of our most brilliant minds swallowed the bait, hook, line, and curve ball.

[As I noted to Patterico, consider the title of the Reuters story: "Laura Bush says sexism possible in Miers criticism." Did she say that? No, she did not. A more accurate title would have been "Laura Bush fails to kick Matt Lauer in groinal area for suggesting sexism behind Miers criticism." Maybe he deserved it, but that's not exactly the First Lady's job. Though it sure would have made for good television.... -DaH]

For the love of God, Montresor, you must remember that these people do not mean us well. Reuters and the Washington Post are beside themselves with glee at the internecine GOP warfare; it is they, not the White House, who are "pour[ing] more gasoline on the fire," as Captain Ed titled his post. We know the MSM lie and distort, particularly when transcribing oral statements that have a chance of fanning the flames.

In a situation like this, slight differences in wording, or even when someone draws breath after being interrupted, can completely change the meaning of a sentence. We in the 'sphere have a duty to measure six times before we leap. In this case, all it took was a click on a javascript link and the will power to sit through Matt Lauer's insufferable boorishness for a quarter of an hour.

October 10, 2005

Bush Nominates Reagan to the Court!

Injudicious Judiciary

Hatched by Dafydd

This will be my last post on Harriet Miers for some days, not because there's not more to say but because I'm tired of talking about it (and I presume most readers are getting more than a little tired of reading about it!)

I was talking with a friend (another Dogface), and he said that he was really annoyed with Bush for (as he put it) telling one of his extremely rare "lies." "What lie was that?" "When he said that he believed Miers was the most qualified person for the Court." "I think Bush actually believes that." "Then," said my friend, "Bush has totally lost it."

And at that moment, I had a Revelation stronger and more sudden than anything I've experience since I quit taking LSD back in the 1980s: I suddenly understood exactly why Bush nominated Harriet Miers instead of (say) J. Michael Luttig.

In my last post, riffing off Captain Ed's Washington Post piece on the taxonomy of the Miers debaters, I talked about the fourth class of conservatives, what I called the Cowboys. These are intelligent but non-intellectual (even anti-intellectual) folks who don't try to articulate their conservativeness... they simply live it. I noted that Bush belongs to this class, rather than to the Loyalist Army, the Rebel Alliance, or the Trench-Dwelling Dogfaces, all of whom at least have pretensions to being intellectuals.

The Cowboys very much distrust intellectuals because they believe those eggheads can talk themselves into believing anything. Case in point: how many extraordinarily intelligent and perspicacious intellectuals managed to talk themselves into believing in Communism, including such later conservative luminaries as Whittaker Chambers, David Horowitz, and about half the founding staff of Bill Buckley's National Review?

In contrast, there is a very special kind of person found almost exclusively among the Cowboys. For want of a better word, I'll call this sort a Gipper. A Gipper (Ronald Reagan is the prototypical example) is a person who doesn't need to logically reason his way to rightness, because he has an instantaneous intuitive understanding of right and wrong.

Despite so many of Reagan's friends and mentors falling for the Communist line, and despite the fact that Reagan was a New-Deal Democrat, Ronald Reagan never once, not even for a moment, had anything but absolute contempt and loathing for Communism and its kid-sister Socialism. He started fighting the Communists in the 1940s, during the war, while even FDR himself was pedaling the line that "Uncle Joe" Stalin was an enlightened, progressive, scientific, and democratic leader.

(Don't believe me about FDR? Rent a copy of the 1943 Warner Brothers movie Mission to Moskow, made by Jack Warner on direct orders from Roosevelt himself and filmed from the diary of FDR's former ambassador to the USSR, Joseph Davies.)

Reagan happened to be an excellent writer, but he never thought of himself as an intellectual. His genius was first in seeing the right, then in being able to explain it in terms that were not only universally understandable but extraordinarily persuasive. Buckley made conservatism respectable, but it took Reagan to make it popular.

Anybody who knew Reagan for any length of time knew that, no matter what compromise he was forced to accept due to circumstances, Reagan would never, ever "drift to the left," "grow in office," or accept the nearly universally held postulate that Socialism was the way of the future, and the New Soviet Man was the future of Mankind.

Since everyone reading this far is probably both intelligent and pretty intellectual, I predict that you're way ahead of me. George Bush knows Harriet Miers extremely well; he clearly believes that she is not only a Cowgirl but also has an uncanny knack for immediately knowing the right thing to do (from Bush's point of view).

George Bush sees Miers as a female Ronald Reagan: to him, she is a Gipper.

The reason he believes that she will never be seduced by intellectual arguments for judicial activism is that she has that eerie ability to cut through the crap and see the true, ignoble self of the Left. And he believes that she knows what is the right thing to do and can articulate it to the other justices in their conferences before they vote. Bush would argue that it's a thousand times more valuable to be able to persuade one or two justices to her way of thinking -- than simply to write a brilliant, erudite, and scathing dissenting opinion, as Antonin Scalia so often does.

He sees her lack of an intellectual paper trail not as a drawback that must be explained but the very reason he trusts her in the first place: Harriet Miers would never have been impressed by the mighty brains who proved in the 1930s that Das Kapital was the blueprint for secular paradise.

I was somewhat subdued by this flash of comprehension. Of course I don't know if Bush is right about Harriet Miers; I don't know the woman. But I now believe he is right about the basic approach -- there should be at least one person on the Court who is not an intellectual and has a natural immunity to the soulless absurdities that intellectuals can so readily rationalize. The Supreme Court needs a Gipper to slap the other justices across the face and say "snap out of it!"

According to Newsmax.com (a source I almost never cite, for obvious reasons), Antonin Scalia himself seems to have come to a strikingly similar opinion:

"There is now nobody with that [non judicial] background after the death of the previous chief," Scalia laments to [CNBC's Maria ] Bartiromo.

"And the reason that's happened, I think, is that the nomination and confirmation process has become so controversial, so politicized that I think a president does not want to give the opposition an easy excuse [to say] 'Well, this person has no judicial experience.'"

Scalia concludes: "I don't think that's a good thing. I think the Byron Whites, the Lewis Powells and the Bill Rehnquists have contributed to the court even though they didn't sit on a lower federal court."

I wouldn't have made such an appointment myself. But then, I'm not a Cowboy.

October 9, 2005

Loyalists, Rebels, Dogfaces -- and Cowboys

As usual, Captain Ed absolutely nails the taxonomy of conservatives who are arguing about the nomination of Harriet Miers... but yesterday, he managed to do so in the Washington Post!

"Local boy makes good." Even though I'm based in California and he's one of the Northern Alliance Minnesotans like the Power Liners, he's "local" in the sense that he's a blogger; when a blogger is invited to write an article for the Washington Post, it's a spectacular triumph for the entire blogosphere. Congratulations, Captain Ed, both for the column and also for its placement in the Holy Grail of MSM!

The analysis has the conservatives breaking up into three factions -- the Loyalist Army, the Rebel Alliance, and the Trench-Dwelling Dogfaces.

Ed defines these three categories as (respectively) those who actually defend the Miers nomination itself as a good one, either because of Miers' abilities or because of the strategic nature of her stealth appointment; those who are so opposed to the nomination that they've actually decided to go to war against it, regardless of the consequences to the GOP (or perhaps because some believe that the consequences of letting it go forward would be worse -- more on that anon); while the Dogfaces in the trenches are those like the blokes at Power Line and Captain Ed himself (and like me) who think it a blunder -- but who believe that having a civil war within the party would compound the error into a serious threat to our chances in 2006 and 2008. This makes it so much easier to swiftly characterize various actors, from Hugh Hewitt to Patterico.

Ed gives several examples of bloggers in each of the first two categories, but the Post inexplicably snipped out his examples from the Dogface category, which I'm absolutely convinced must have refereced John and Paul at Power Line as well as... other blogs. (Ed tactfully refrained from answering my rather ham-fisted hints about whether he had mentioned Big Lizards, thus leaving me free to fantasize that I might have been mentioned in the Post, if only the blackguards hadn't snipped the passage. Thanks for not shattering my illusions, Ed!)

The primary argument by the Rebel Alliance is that her confirmation would cause vast numbers of voters to be so depressed or infuriated that they simply sit out the next election, leading to catastrophic losses. With all due respect to the Rebels, I have to say this indicates, well, a rather colossal ego (one which I am certainly prone to myself!): the idea that most everybody else around me shares my priorities.

In reality, most conservatives across the country aren't even aware this battle is raging. They're the undistributed middle from Captain Ed's taxonomy -- I call them the "Cowboys." Alas, this vast class is routinely ignored by the Rebels, who (like many other intellectuals) consider someone's opinion relatively unimportant unless it's articulated in a written court opinion, in a book or article, on television or radio, or in a well-regarded blog.

Cowboys can live in the city or the country. As a group, they are completely untroubled by the nomination of Harriet Miers because they just plain like her (as they just plain like Bush, another Cowboy). These are people who don't philosophize about their conservatism... they simply live it day to day. They form the true core of the Republican Party.

When they vote, they vote on the big core issues: taxes, the Global War on Terrorism, moral issues, ethical issues, regulation, the economy -- not on specific nominations of specific judges (even to the Supreme Court). And they always vote Republican.

They ignore the day-to-day bickering among the chattering classes; they may not be able to intellectually define a conservative, but they know 'em when they see 'em. And they love Harriet Miers because she is one of them. They won't be turned off by this nomination; they don't particularly trust intellectuals anyway... they see them as always able to find some egg-headed justfication for liberalism.

The Cowboys are the reason that confirming Miers is better than destroying her: when they get upset at Republicans (for example, at liberal appeasement by George H. W. Bush), they don't vote for third parties, and they for God's sake would never vote for a Democrat. They simply don't vote.

Miers is one of the Cowboys. She only recently arrived at this position; earlier, she clearly was a moderate. But the Cowboys always welcome sincere converts, and I don't think even Patterico would argue that Miers is not socially and politically conservative now. The Cowboys see Meirs as that nice lady from church who's always the first to volunteer to raise money for Christmas gifts for the troops or toys for poor kids -- the little lady that always makes them feel so good when she smiles and waves and says "howdy!"

The Rebels seem to have fooled themselves into believing that most conservatives are as passionate about the life of the mind as the articulate, highly educated, and very intelligent Rebels themselves are. I have great sympathy for this mistake; I make it myself. But my too-brief stint in the Navy taught me that most intelligent, decent, and moral folks are simply not "intellectuals": they do not spend their life pondering postulates, arguments, and logical conclusions (as, e.g., lawyers must). They don't commit philosophy. Think of John Wayne, the perfect Cowboy.

But the Cowboys might be very much bothered by her rejection, because they hate traitors and losers: if Miers is forced out or defeated by Republican votes, then the Rebels will come across to the Cowboys as disloyal, and the Loyalists will come across as incompetent losers. The Cowboys may well fume, lose interest in voting, and sit out the election.

If this nomination is to be stopped, it should be stopped before it ever gets to Judiciary Committee hearings. A withdrawal would be far less embarrassing and damaging than a defeat in the Judiciary Committee, or (less likely) on the Senate floor.

I'm glad to see that Patterico is finally acknowledging that defeating Miers in either the J-Com or on the Senate floor would severely damage the Republican Party. Where we differ is that he believes it's possible that Bush might be persuaded to make Miers softly and suddenly vanish away, doing minimal damage -- whereas I believe Bush's personal loyalty to those close to him who have done him no dirt will prevent him from ever abandoning her... just as he never abandoned Priscilla Owens, Miguel Estrada, or Janice Rogers Brown.

The only way to keep Miers off the Court will be to defeat her, either in committee or on the floor. And as Patterico himself admits, this will damage the party. So count me as a Dogface doggedly defending a Cowboy's Cowboy.

October 8, 2005

Would a Miers Fight Hurt the GOP in 2006?

Over on Patterico's Pontifications, Patterico made the point that "Robert Bork’s defeat in 1987 didn’t seem to hurt Bush I much" (in his quest to succeed Reagan, I presume Patterico means).

Of course not. Reagan had already lost Congress, and the Senate was 55-45 in favor of the Democrats. It's expected that a president with a hostile Senate is going to lose nomination fights, and the electorate has already discounted that fact.

What hurts a party -- indeed, weakens it -- is when it has a strong majority and it still loses a nomination fight. Bush and the GOP were all right during the filibuster wars, but that was because of the wide perception among Republican voters that the Democrats were using improper and unfair tactics, where 41 senators could stop 59 senators from confirming a judge. The GOP repeatedly made the point that if those nominations had actually gone to a vote, each of them would have been confirmed: "we're not losers," the Republicans were saying; "the Democrats are cheating!" In fact, not a single confirmation cloture vote during Bush's presidency has failed to get a majority; each confirmation was blocked by a minority, typically even less than the entire Democratic caucus.

Americans hate cheaters.

But if the anti-Miers camp succeeds in sparking a revolt among six or seven of the most conservative Republican senators, leading to the rejection of Miers despite a strong GOP majority in the Senate, this will put the mark of Cain on the GOP, the scarlet-L for LOSERS. And that, much more than grudging acceptance by the Senate, is what will depress turnout.

How does that work, depressing turnout? The core of the base will vote; they always do; that's part of the definition of "core." But that only accounts for 38% - 40% of the total vote. So where does the other 11% - 13% come from to get to (say) 51%, as Bush got in 2004? It comes from what I call "sunshine voters." These are not party stalwarts but cast their votes depending on how they feel that particular day. This is not the same as "independents," because most of the latter have more-or-less consistent leanings but are unwilling to declare themselves members of either major party. I'm talking about the folks who truly switch their votes from election to election.

If the GOP comes across as Losers, it will be the sunshine voters who vote Democratic, vote for a goofy third-party candidate, or just stay home. They supported Bush in 2004 because he seemed like a winner, in contrast to Kerry, who seemed like a whiner. Americans hate losers just as much as they hate cheaters.

If you polled 1500 Republican voters, the percent that would recognize the name "J. Michael Luttig" would likely be in single digits, and virtually all would be core voters. The sunshiners are not upset that Bush nominated Miers instead of Luttig or Emilio Garza or Priscilla Owens; they don't even know who those people are, and they certainly wouldn't base a vote on that issue. What they're upset about right now is the absurd MSM-driven perception that we've lost in Iraq and thousands of American soldiers are being slaughtered every month, and the (partly true) perception that the Republicans are spending too much.

(I say "partly true" because spending as a pecent of GDP has been remarkably constant recently. In 2001, it was 18.5%; this rose to 19.4 and 19.9 in the next two years, dropped to 19.8 in 2004, rose to 20.3 this year (Katrina), and is 19.9 again in the 2006 budget. By contrast, the average during Reagan's administration was 22.4%, and at no time did spending ever drop below 21.)

By 2006, we will have pulled significant numbers of troops out of Iraq; and almost certainly, spending will be down from the Katrina-driven high this year. So there is no reason to believe, absent a civil war within the party, that the Republicans will do poorly in the 2006 campaign. Structurally, we're poised to pick up seats in the Senate (more engandered Democratic seats than Republican) and at least hold steady in the House.

But if we lose the sunshiners, that will spell electoral disaster. That's what happened to the Democrats in 1994; their core voted for them, but nobody else, and GOP turnout was unexpectedly high... because the sunshiners defected to the right for a variety of reasons (taxes, the failed Hillarycare proposal, and so forth). The 2006 sunshiners could defect left under several circumstances: if Iraq collapses; if Bush were to follow his father's lead and raise taxes; if some huge corruption scandal rocked the GOP (for example, if Patrick Fitzgerald indicted a dozen top Republicans in the Valerie Plame leak investigation); or if spending and deficits shot upward sharply. None of these is likely at this point; in Iraq, eventually perception will be forced at gunpoint to catch up to reality. Bush isn't going to raise taxes, and it's unlikely Fitzgerald can find any significant figures in the administration who (a) identified Plame by name to reporters and (b) actuallyhadauthorizedaccess to the CIA personnel files -- neither Rove nor Libby would have that, for example. Indictments could only flow if officials stupidly lied under oath, which seems unlikely, since they're actually legally in the clear. And we're not likely to have another Cat-4 hurricane strike a huge city in 2006.

But the one thing that could turn the tide for the Democrats is if a civil war erupts within the GOP, and especially if several Republican senators campaign against and vote down Harriet Miers, or if they force Bush to withdraw her name. Ironically, the ones who might do this would be the most conservative senators in the reddest states -- and they won't suffer a bit for their defection, because red states vote red. Where it would make a difference would be in the purple states like Ohio, where DeWine is already in political trouble, and in Pennsylvania, where Rick Santorum is teetering on the brink. It could also hurt possible pickups in states like Washington (Cantwell) and Maryland, where disarray among the Democrats and a very atttractive Republican candidate in Lt. Gov. Michael Steele gives the GOP a real shot at stealing away the seat of retiring Sen. Paul Sarbanes. The Loser Label on the Republican Party could the kiss of death in close Senate races.

So yes, a bloody internecine combat over Miers within the GOP has a much greater chance of damaging the party's chances in the 2006 elections, snatching defeat from the jaws of victory, than could possibly happen if conservative senators gripe and bitch but in the end go ahead and vote to confirm her.

Patterico made another point earlier, that not even those calling for her confirmation, such as myself, actually think she was the best candidate -- or even a very good candidate. He's absolutely correct; I think this was a huge Bush mistake. And Patterico is also correct that Bush should have seen this reaction coming and been unsurprised. And in terms of "fault," if that is important to you, Bush certainly must shoulder some of the blame. But withdrawing her now in response to furious attacks by the conservatives would be just as bad as having her voted down by his own party: he would look like a right-wing sock puppet.

The last chance to avoid the collision with the eighteen-wheeler rests with the Senate Republicans. They, not Bush, are in the driver's seat now. And if the conservative senators put personal pique over party loyalty and start a donnybrook, and if we head-on the semi in 2006, then in the last analysis, the onus will be on them for not swerving when they had the chance.

October 7, 2005

Miers Mania

Injudicious Judiciary

Hatched by Dafydd

A lot of us here are old enough to actually remember the seventies, the shambles the country was in after half a century of liberal rule (including the liberal Republicans Herbert Hoover, Dwight Eisenhower, Richard "we're all Keynesians on this bus" Nixon, and Gerald "WIN" Ford).

Even more of us are old enough to remember Ronald Reagan. Reagan made some bad decisions (Beirut, Sandra Day O'Connor); and he suffered some serious disappointments and setbacks.

But the thing about Reagan was that he never lost heart. He was the cheerful warrior. If he lost a battle, he took the best compromise he could get -- and then continued to work together with his center-right and conservative allies for the victory that eluded him the last time. He famously said that if half a loaf was all we could get, then let's get half a loaf now and go back for the rest later.

There's an old British expression that may sound quaint, but it's just as critical today as in the days of Benjamin Disraeli: Now is the time for all good men to come to the aid of their party.

The center-right coalition is critical to everything the Republicans have achieved since 1995, when we took over the House and Senate... but it's in terrible danger now. And who is threatening it? President Bush, because he nominated Harriet Miers?

No. Bush isn't threatening to destroy the coalition: that honor goes to the enraged critics of Miss Miers.

I don't think it was a good nomination. I think it was a big mistake. But it is not a catastrophe... and it certainly is not worth pulling down the entire edifice upon our heads, like a blinded Samson pullling down the Temple of Dagon. Not only will that destroy the entire Republican agenda, it will result in even more judges like Ruth Bader Ginsburg and Stephen Breyer -- the very result the anti-Miers camp claims it wants to avoid! Remember, Samson, too, died in the collapse of the Philistine temple.

This is, quite literally, insane: because they're mad that Bush appointed someone they don't know will be a conservative judge, they'll engineer a situation where we'll get three hundred judges that we know damned well will be the most liberal judges President Dean can possibly find.

Oh, and we'll lose the war on terrorism, too. We'll try to fight it as a police action... you know, the European way. The French way. We'll get the opportunity to experience Intifada up close and personal.

If tax cuts, business deregulation, and litigation reform are your goals, then kiss them goodbye. If reform of entitlement programs like Medicare and Social Security are important to you, well, get used to disappointment. Say hello to Hillarycare. Shake hands with an expanded Americans with Disability Act, runaway crime rates, and even wilder spending that we're getting from the Republicans. If you love the Vermont, Massachusetts, and California state legislatures, you'll be in hog heaven... because that's Congress with the Democrats in charge. Oh, and get ready for same-sex marriage, nationwide hate-speech codes, a million Kelo confiscations of land and property, an even more powerful Endangered Species Act, $6 a gallon gas, and the swift Europeanization of the United States.

But there is an upside: the Miers attackers will have taught Bush a good, hard lesson for nominating someone they don't personally know and like to the Supreme Court.

I know this has become a holy war for many: but holy wars produce an awful lot more martyrs than victors. Please stop and think: do we really want to live in the world brought about by annihilating the center-right coalition of the past decade? Over this?

I would rather be Reagan than Samson. I'd rather work for the rest of the loaf than pull the temple down upon my own head. I will support Bush and the Republicans in 2006 and 2008 as strongly as ever, despite the nomination of Harriet Miers. And who knows? Maybe she'll turn out to be a good justice after all.

October 5, 2005

More Miers Musings

I just read George Will's typically elitist (and typically boorish and snide) hit piece on Harriet Miers, President Bush, and indeed upon everybody who didn't listen to George Will.

Perhaps it's the mathematician in me, but a conundrum just occurred. Will writes:

The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.

Since Professor Will -- who has a PhD in politics, but not specifically in constitutional law, and who is not even a lawyer -- has not particularly demonstrated "years of practice sustained by intense interest" in constitutional law, nor that he is "among the leading lights of American jurisprudence," or that he possesses "the inclination []or the ability to make sophisticated judgments about competing approaches to construing the Constitution"... then perhaps he is also unqualified to set the standards to determine who actually does have the very qualities he, himself lacks.

Those are just my thoughts, but I'm not a lawyer, either. I'm not sure I'd take kindly to a journalist telling me who is qualified to be called a mathematician, however.

October 4, 2005

Memo to All Republicans:

Elections
, Injudicious Judiciary

Hatched by Dafydd

TO: Republican stalwarts having the vapors over the nomination of Harriet Miers

FROM: Realm of Sanity

SUBJ: All is forgiven, please come home

Ladies and gentlemen; please lie down on the floor, put a cold compress on your foreheads, and try to calm yourselves. Deep breathing helps. If you begin to feel dizzy, recall that you cannot fall off the floor -- although recent actions of the Democratic Party cast some doubt on this observation.

So you were hoping for J. Michael Luttig or Emilio Garza, or maybe one of the Two Ediths, and you got Harriet Miers. You're disappointed or perhaps confused. I'm with you; so am I.

But.... Before you go flying off in all five directions, saying you've "had it" with President Bush and threatening to "sit out" the next eighteen elections (just to show those stinky Republicans who didn't listen to you), let's talk this out. If you prefer, take a stress pill, assuming that is legal in your neck of the woods.

What is your goal? What are you most concerned about anent judicial appointments? You want a conservative judge, or a strict constructionist, or an originalist, or a textualist, or somesuch other being who will not "legislate from the bench." Right?

First of all, you don't know that Miers is not just such a creature; you don't know she is, but you also don't know she isn't. In fact, President Bush also wants such persons on the bench. While you and I have been opining, he has been busily appointing conservative judges to district and circuit courts and to the Supreme Court.

He has known Miers for two decades and worked closely with her for his entire tenure as president, and as governor of Texas before that. Unless you think he's been taken over by the pod-aliens from Invasion of the Body Snatchers, he must think that Harriet Miers will be just such a conservative judge. He says she is; is he lying?

But even if he turns out to be wrong, and Miers is another Sandra Day O'Connor... how does hurting the GOP help your cause, which is still to get strict constructionists onto the bench? If a bunch of us fold our arms and refuse to vote, or vote for a wacky third-party candidate like Ross Perot, what happens? Well, what happened in 1992? Say, you've got a good memory; we ended up with William Jefferson Clinton in the White House. That sure worked out well!

And who did Mr. Clinton appoint to the federal courts? 373 judges like Ruth Bader Ginsburg and Stephen Breyer. Nearly every time I read about a despicable, activist decision by a federal court, I look up the judges and they turn out to have been appointed by either Bill Clinton or by Jimmy Carter -- not coincidentally the last Democratic president before WJC.

In fact, the worst justices on the Court appointed by Republicans -- Souter and Stevens -- are better than either justice appointed by Clinton; you know, the ones you gave us last time by sitting out the 1992 election.

If your goal is more Scalias and Thomas and fewer Ginsburgs and Breyers, and your strategy is to punish Republicans by refusing to vote for them... well, I don't know about you, but I see a bit of a disconnect from reality there. So bitch and moan privately, if you want, but then suck it up and support the Republicans in 2006 and beyond. After all, even if you think the lesser of two evils is still "evil," it's still also "lesser!"

September 22, 2005

Crash and burn on my prediction for the J-Com vote! I wildly overestimated the Democrats' ability to recognize their own best interest. The vote of course included five Democrats voting against, not just Ted Kennedy: what is astonishing to me is that Joe Biden, Charles Schumer, and even Dianne Feinstein voted against Roberts. Dick Durbin I can understand; he's not exactly the sharpest crayon in the tank. But Dianne Feinstein? She's never been a wacko before; liberal, but not a captive to the MoveOn crowd.

Oh well; this of course means that more than twenty Democrats are going to vote against Roberts in the full Senate... but are they going to get forty willing to filibuster? I don't think they can: Harry Reid, leader of the opposition, insists he will not vote against cloture; besides, Russ Feingold, Herb Kohl, and Pat Leahy voted for Roberts, while Mark Pryor, Tim Johnson, Max Baucus, and Ben Nelson have already declared support, with Mary Landrieu and Kent Conrad "leaning" towards Roberts; that should make at least ten Democrats ostensibly unwilling to filibuster, which would make a filibuster impossible. So Patterico's earlier prediction is still possible... though since he unwisely signed aboard my prediction, I get to split the ignominy!

My other prediction, about the Iraqi Constitutional vote, is still live, of course. I sure hope the Iraqi voters are smarter than the Democrats....

September 21, 2005

Patrick Leahy Says He'll Back Roberts

Injudicious Judiciary
, Politics - National
, Predictions

Hatched by Dafydd

UPDATE: Crash and burn on the prediction about the vote in the Judiciary Committee! Read all about it here.

In a move that seems to have shocked everybody except Patterico and myself, Sen. Pat Leahy (D-VT), Democratic J-Com stalwart and filibustering fool, announced today that he will vote in favor of John Roberts, Bush's nominee to be Chief Justice of the United States Supreme Court.

Leahy, D-Vt., said he still has some concerns about Roberts. "But in my judgment, in my experience, but especially in my conscience I find it is better to vote yes than no," he said. "Judge Roberts is a man of integrity. I can only take him at his word that he does not have an ideological agenda."

Although Sens. Joe Biden (D-DE) and Charles Schumer (D-NY), both on the Senate Judiciary Committee, have yet to formally announce their votes either way, both gave interviews in which they said that Roberts was the best Supreme-Court nominee either had ever seen. I find it hard to believe they would say that -- and then vote against him.

In the meanwhile, as I expected, Sen. Edward Kennedy (D-MA) announced his own position:

Moments after Leahy spoke, Sen. Edward Kennedy of Massachusetts, who also serves on the Judiciary Committee, announced he would vote against Roberts.

"There is clear and convincing evidence that John Roberts is the wrong choice for chief justice," Kennedy said. "I oppose the nomination, and I urge my colleagues to do the same."

There are other Democratic senators yet to announce: Dick Durbin (D-IL), Russell Feingold (D-WI), Dianne Feinstein (D-CA), and Herb Kohl (D-WI); still, I think my prediction, that Roberts will get all of the senators on the Judiciary Committee except Ted Kennedy, is looking pretty prescient at the moment.

September 18, 2005

Predictions, Predictions: the Iraqi Consitutional Vote

UPDATE: Crash and burn on the prediction about the vote in the Judiciary Committee! Read all about it here.

One of my favorite thrillseeking pastimes is making high-level predictions. Unlike those by psychics, mine are specific and near enough that everyone will remember to check -- thus I dance on the high-adrenaline tightrope between, as Charlie Brown would put it, being a hero or being a goat.

(I actually have a fairly good track record, because I do not make my predicions anywhere near as randomly as I pretend.)

The Iraqi constitution, which their parliament just voted to be put to the Iraqi people, can only be derailed by either a majority vote against (not politically possible) or by its rejection by three provinces, each with more than two-thirds against.

This time, I'll just flip a coin *: Dafydd the Great, wearing turbin and holding back of hand to forehead, predicts that no more than one province will muster the necessary 67% rejection. (Actually, I believe none will; but I'm hedging my prediction slightly.)

In an earlier, unrelated prediction posted on Captain's Quarters about the vote on John Roberts' nomination in the Senate Judiciary Committee, I prognosticated that every Democrat on the committee except Ted Kennedy will vote to support Roberts in the vote recommending his nomination to the full Senate.

All of my predictions will have the primary category "Predictions," to make for easy tracking. After each is decided by the quantum vicissitudes of time, I will update it, scoring Dafydd the Great either a hit, a miss, or a mixed result (a wash).

* I'm lying again, as I warned you I might. I don't make my predictions by flipping a coin. I've been following this upcoming election for some time. My thinking was also influenced by this post by Captain Ed over at Captain's Quarters. So there.

September 17, 2005

The Patterico Gambit

Injudicious Judiciary

Hatched by Dafydd

Patterico just put up a nice post agreeing with my rather outré prediction that all but one of the Democrats on the Judiciary Committee will vote in favor of Judge John Roberts to send his Supreme-Court nomination to the floor of the Senate. I belatedly realize that a post from Patterico back in May must have formed part of the reasoning behind my own, more specific prediction; Patterico's earlier Prediction was this:

Democrats will not filibuster Bush’s first Supreme Court nominee — no matter who it is.

They will filibuster his second Supreme Court nominee — no matter who it is.

So far, the first half of this looks solid; and we'll see very soon whether the second half is likewise prescient.

Here is the more interesting point: Patterico notes that this tactic (filibuster the second, not the first) sets the Democrats up for the Miguel Estrada gambit: Estrada's resume is very similar to Roberts, and Estrada was filibustered for doing exactly what John Roberts did and got away with doing: refusing to answer specific questions, and refusal by the White House to turn over notes from his time in the Soliciter General's office. It's virtually impossible not to suspect that the Democrats were against Estrada not simply because he was a conservative but because he was a conservative Hispanic... and if the Republicans make the charge, it will be very difficult for the Democrats to refute, especially in light of the memo that Patterico cites.

Read these Patterico links: the J-Com battles are going to get very hot very fast!

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